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PUBLIC  INTERNATIONAL  LAW  AS  APPLIED  TO  PHILIPPINE  LAW    
by  
Dean Sedfrey M. Candelaria
Ateneo  Law  School    
 
Introduction: NATURE OF INTERNATIONAL LAW  

Hart’s observations:
(a)   Primary rules of obligations;
(b)  Lacks secondary rules of change and adjudication which provide for legislature and
courts;
(c)   Lacks a unifying rule of recognition specifying sources of law and providing general
criteria for the identification of its rules.

Chapter I. THE SOURCES OF OBLIGATION IN INTERNATIONAL LAW  

Article 38(1) of the Statute of the International Court of Justice  

(a)   Treaties (see Vienna Convention on the Law of Treaties)

(i)   What is a Treaty?


Elements: International agreement
States
Written
Governed by international law
[VCLT, Article 2(1)(a) and ILC Commentary]

Capacity: National/Federal Government


(but resort to Federal Constitution with regard to component state)
[VCLT, Article 6]

(ii)   The Making of Treaties

Making: GR- Full powers needed


Exceptions:
1. Heads of states/governments
2. Foreign affairs ministers
3. Heads of diplomatic missions - limited
4. Representatives to international conferences - limited
(NOTE: Subsequent confirmation of acts of representatives
without full powers validates action on behalf of state)
[VCLT, Articles 7-8]

Adoption: GR- If bilateral or few states, all must concur


Exception – international conference (2/3)
Exception to exception – if 2/3 provide different rule
[VCLT, Article 9]

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Consent: signing, exchange of instruments, ratification, acceptance,


accession, approval, etc. … (need for deposit, exchange and notification)
[VCLT, Articles 11-16)
Philippine Constitutional Law Application:
Article 7, Sec. 20 (foreign loans with Monetary Board concurrence)
Article 7, Sec. 21 (treaty - 2/3 Senate vote)
Article 8, Sec. 4 (constitutionality of treaty is heard en banc by SC)
Article 18, Sec. 25 (treaty on new military bases, troops or facilities)

SYNTHESIS
A7, S. 20 A7, S. 21 A18, S.25
- loans - treaty / international - foreign military bases,
- concurrence of MB - agreement (e.g. troops or facilities
- President WTO) - treaty
- Example: debt buy - 2/3 vote of Senate - 2/3 vote of Senate,
back and when Congress so
Note: requires, majority vote
Executive agreement as in national referendum,
exception to 2/3 vote and recognized as a
(e.g. exchange of treaty by other
notes) contracting state
VCLT

Case law:
Bayan v. Zamora et al. (G.R. Nos. 138570, 138572, 138587 & 148680, Oct.
10, 2000) – Constitutionality of VFA in relation to Article 18, Sec. 25;
interpretation of the phrase “recognized as a treaty.”
Nicolas v. Romulo (G.R. No. 175888, Feb. 11, 2009) – VFA as mere
implementation of the 1951 RP-US Mutual Defense Treaty; VFA is a sole
executive agreement subject to the Case-Zablocki agreement procedure;
“Romulo-Kenney Agreements of Dec. 19 and 22, 2006,” detaining
American accused in US embassy, is not in accord with Art. 5, Sec. 10 of
VFA; distinguish the following: (a) Art. 5, Sec. 6 – custody from
commission of offense until completion of all judicial proceedings is with
US, while (b) Art. 5, Sec. 10 – after conviction, confinement or detention
by Philippine authorities shall be carried out in facilities agreed on by
appropriate RP-US authorities.

Lim v. Executive Secretary (G.R. No. 151445, April 11, 2002) – “Balikatan
Exercises Terms of Reference” - does not need concurrence by Senate.
Pimentel v. Executive Secretary (462 SCRA 622) – Signing and ratification
distinguished; President may refuse to submit treaty (creating ICC) to
Senate.
(NOTE: GRP already ratified the Rome Statute in August 2011)

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Sps. Renato v. Hon. Rosario (G.R. No. 106064, October 13, 2005) – A debt-
buyback scheme is within the power of the President to enter into under
Art. VII, Sec. 20 of the Constitution.

Pharmaceutical v. DOH (G.R. No. 173034, October 9, 2007) – WHO


guidelines as mere “soft law.”
Abaya v. Ebdane (513 SCRA 720) – Exchange of Notes is a form of
executive agreement.
Province of North Cotabato v. GRP Panel (G.R. No. 183591, October 14,
2008 and MR) – Memorandum of Agreement on Ancestral Domain
between GRP and MILF is not a treaty.

Bayan Muna v. Romulo (G.R. No.159618, February 1, 2011) – The RP-US


Non-Surrender Agreement is an Exchange of Notes constituting an inter-
governmental agreement. It is an international agreement but not in treaty
form. It does not contravene the Rome Statute because the ICC recognizes
the primacy of international agreements. Primary jurisdiction rests upon the
state and secondarily with the ICC.

China National Machinery v. Santamaria (665 SCRA 189) – A contract


entered into between non-state entities does not constitute an executive
agreement as in this case, North Luzon Railways Corp. and China National
Machinery and Equipment Corp.

Deutsche Bank AG Manila Branch v. CIR (GR No. 188550, August 19,
2013) – A requirement of the BIR to first file tax treaty reliefs application
within 15 days before availing of the preferential tax rate of 10% under the
RP - Germany tax treaty cannot prevail over a treaty relief.

(iii)   Reservations to Treaties

GR – allowed
Exceptions:
1.   if prohibited by treaty itself
2.   if only specific reservations are allowed
3.   if incompatible with treaty purpose

Form of reservations/withdrawal/objection:
–   written & communicated
[VCLT, Articles 19-23]

Case law:
Reservations to the 1948 Convention on the Prevention and Punishment of
the Crime of Genocide (Advisory Opinion, I.C.J. Reports, 1951) – On the
effect of absence of reservation clause in a Convention; reservations were
contemplated but the purpose of the treaty tended to discourage; intent to
prevent an international crime.

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(NOTE: in the International Criminal Court, no reservations are permitted,


Article 120)

(iv)   Interpretation of Treaties


 
GR –1. interpret in good faith
2. ordinary meaning of word in “context” (resort to related text)
3.   relate to object and purpose

Exception – give “special meaning”, if parties intended


[VCLT, Articles 31-32]

Case law:
Interpretation of Peace Treaties Case (Second Phase, Advisory Opinion,
I.C.J. Reports 221, 1950) – In a dispute concerning the Peace Treaties of
1947, three signatory states refused to comply with a three-person panel
dispute settlement procedure for the purpose of interpreting the treaty
whereby parties are required to appoint their own representatives and, by
mutual agreement, a third neutral member of a Commission; the U.N.
General Assembly asked whether the Secretary-General may now appoint
the third neutral member; in answering in the negative, the Court observed
that “according to the natural and ordinary meaning of the terms, ‘it was
intended that the appointment of the national commissioners should precede
that of the third member’.” Thus, the three states (Bulgaria, Hungary and
Romania) are under an obligation to appoint their representatives to the
Treaty Commissions, failing which will entail international responsibility.

(v)   Peremptory Norms of International Law – Jus Cogens

GR- parties cannot enter into a treaty contrary to jus cogens or norms
recognized and accepted by the international community; non-derogable.

Examples: unlawful use of force, commission of a criminal act, trade in


slaves, piracy, genocide, human rights violations, equality of states, and self-
determination.
[VCLT, Article 53]  

(vi)   Withdrawal, Termination and Rebus sic stantibus

GR – allowed to withdraw in conformity with treaty and anytime with the


consent of all
Exception – if no provision
Exception to exception –
1.   if parties intended to allow withdrawal
2.   if implied by the nature of the treaty

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Effect of later treaty – later one prevails, if all parties conclude and they
intended later one to govern; or, if later one is incompatible with earlier
one.

Rebus sic stantibus:


GR – any unforeseen or fundamental change not a ground for termination or
suspension

Exception –
1.   if essential basis of consent, and
2.   if obligation is transformed radically

Exception to exception –
1.   treaty establishing boundary (uti possidetis - African and South
American experience after colonizers left; intended to preserve
territorial integrity in cases of state succession.); or,
2.   if the fundamental change arose from a breach by the invoking party
[VCLT, Articles 54, 56, 59, 61, 62]

Case law:
Fisheries Jurisdiction Case (Jurisdiction, United Kingdom v. Iceland, I.C.J.
Reports, 1974) – Test of rebus sic stantibus: the circumstances must have
increased the burden of the obligations to the extent of rendering the
performance of an act essentially different from that originally undertaken.

Danube Dam Case (Hungary v. Slovakia, 37 ILM, 1998)- If joint exploitation


of the investment was no longer possible because Hungary did not carry out
most of the works, A61, par. 2 of the VCLT states that impossibility of
performance may not be invoked for the termination of a treaty by a party to
that treaty when it results from that party’s own breach of an obligation
flowing from that treaty; state of necessity is not a ground for terminating a
treaty but may only be invoked to exonerate one from responsibility; neither
could fundamental change of circumstances prosper because the change must
be unforeseen [here, political motive, reduced economic activity of the
Project, and progress of environmental knowledge and international
environmental law are not sufficient grounds]. Violation of other treaty rules
of general international law may justify the taking of certain measures,
including countermeasures, but does not constitute a ground for termination
of the treaty; the violation by Czechoslovakia was the diversion of the waters
of the Danube in 1992).

(vii)   Philippine Practice

E.O. 459 (1997) – Guidelines in the Negotiation of International Agreements

(viii) Rules on conflict between a treaty and a law.

It depends which court is deciding:


1.   international court- will uphold treaty obligation in general
2.   domestic court- will uphold local laws

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Specific situations of conflict:


1.   Treaty v. Constitution- A46, VCLT, when constitutional violation is
manifest and concerns a rule of internal law of fundamental
importance, state may deviate from treaty obligation.
(NOTE: See A27, VCLT which states, “A party may not invoke the
provisions of internal law as justification for its failure to perform a
treaty.” Under dualist theory, unconstitutionality of a treaty is purely
domestic matter. State faces risk of international sanction.)

2.   Treaty v. Domestic Legislation- when the two instruments relate to the


same subject, try to give effect to both; if inconsistent, the later in date
will control, provided that the treaty stipulation is self-executing. But
this rule only applies in the domestic sphere. A treaty, even if contrary
to a later statute, is binding in international law.

3.   Executive Agreement v. Domestic Legislation – executive agreements


cannot prevail over earlier statutes. This is only a matter of municipal
law

Case Law:
Sei Fujii v. California (242 P. 2d 617; 19 ILR 312, 1952)- A California
alien land law, used by California to have the property of a Japanese citizen
in the U.S. escheated to the State, was challenged as contrary to U.N.
Charter, specifically, A55 and A56 on human rights. The Court stated that
the U.S. Constitution distinguished between self-executing and non-self
executing treaties. Here, the U.N. Charter Preamble, A1, A55 and A56
require enabling legislation to affect private persons; the rights of private
persons were not prescribed in detail in the U.N. Charter in regard to the
land law.

(b)   State Practice

(i)   Customary International Law

Definition - evidence of a general practice accepted as law


Elements:
1. Duration (e.g. of quick ones – airspace and continental shelf)
2. Uniformity, consistency of practice (only substantial uniformity)
3. Generality (not all states are needed)
4. Opinio juris –
i.   Objective: settled practice

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ii.  Subjective: obligatory (as distinguished from mere act of courtesy,


fairness or morality)
 
              Case law:
The Paquete Habana (175 U.S. 677, 1900) – Fishing vessels and cargoes are
exempt as prizes of war.  

The Asylum Case (Colombia v. Peru, 17 I.L.R. 28; I.C.J. Reports, 1950) – Concept
of “regional custom”; establish that the rule invoked is in accordance with a
constant and uniform usage practiced by States in question; Colombia can not
unilaterally qualify an offense for purposes of asylum; practice is inconsistent.

North Sea Continental Shelf Case (I.C.J. Reports, 1969) – The use of the
“equidistant principle” in delimiting continental shelves has not attained the status
of CIL; for a provision in a Convention to become CIL it must be “norm-creating”
in character.

Nuclear Test Cases (Australia v. France; New Zealand v. France, I.C.J. Reports,
1974) – Communiqué of France to Australia and New Zealand and the U.N.
General Assembly “that the atmospheric tests will be the last of this type” is a
unilateral declaration on a factual or legal situation, made publicly and erga
omnes, which creates binding obligations.

Nicaragua v. U.S. (I.C.J Reports, 1986) – A formal communication that had been
committed to the OAS was held not to be a formal undertaking, but a mere
political pledge.

(ii)   General Assembly Resolutions

GR – resolutions and declarations of international organs can be recognized as a


factor in the custom-generating process (evidence of general practice)

Case law:
Dissenting Opinion of Judge Tanaka in the South-West Africa Cases (I.C.J.
Reports, 1966) – Concept of “parliamentary diplomacy”; resolutions and
declarations of international organizations as evidence of a general practice.

(iii)   Decisions of International Organizations

R. Higgins, The Advisory Opinion on Namibia: Which U.N. Resolutions are


Binding Under Article 25 of the Charter?

GR – U.N. General Assembly resolutions are merely recommendatory


Exceptions – obligatory and with binding effect on all members in relation to:
1. admission of new members
2. budget approval
3. apportionment of expenses

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(NOTE: Article 25 of the U.N. Charter states that U.N. members “agree to accept
and carry out the decisions of the Security Council…”; interpreted to mean Art. 24,
Ch. VI-VIII on peace and security matters, i.e. intended to be obligatory.)

(iv)   The Limits of State Practice

Persistent Objector – a state that has persistently objected to a rule of customary


international law during the course of its emergence is not bound; this has limited
role today; in cases of new states, they are bound by customary international law
(not treaties) as a consequence of statehood

(c)   Domestic Law

(i)   General Principles of Law

Case law:
International Status of South-West Africa, Opinion of Sir Arnold McNair (I.C.J.
Reports 128, 1950) – Obligations of the Union of South Africa in relation to the
mandate territory; application of the principles of trust in civil law.

Diversion of Waters from the River Meuse (P.C.I.J series A/B, No. 70, 4 W.C.R.
179, 1937) – Recognition of equity as part of international law in no way restricts
the (international) Court to decide the case ex aequo et bono, if the parties agree.

Distinction between equity and deciding a case ex aequo et bono:

1. Equity – law cannot cover every possible situation, so, cases may be
decided using equitable principles.
2. Ex aequo et bono – power of ICJ to decide a case equitably outside the
rules of law.

Other examples of general principles of law: principles of liability, responsibility,


reparation, unjust enrichment, property, expropriation, indemnity, denial of justice,
right of passage, prescription, error, presumption, administrative law, procedure,
humanity, good faith, pacta sunt servanda, estoppel and human rights

(ii)   Application of International Law by Domestic Courts

Case law:
Filartiga v. Pena-Irala (630 F. 2d 876, 1980) – Joelito Filartiga was kidnapped and
tortured to death by Pena-Irala who was Inspector-General of Police of Paraguay;
torture may be perpetrated under color of official authority against anyone regardless
of nationality; U.S. Alien Tort Law allowed aliens to sue and have rights (recognized
in international law) enforced before U.S. courts even for acts committed outside the
U.S. provided there is jurisdiction over the defendant in the U.S.; torturer, for civil
liability purposes, is “hostis humani generis” or enemy of all mankind.  
 
Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R. 881, 1977) –
schools of thought in adopting international law to a domestic system:  
1. incorporation – automatic; except if in conflict with domestic system
2. transformation – international law adopted thru decisions of judges, law or custom

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Philippine Practice: Article 2, Sec. 2 of the Constitution:


The phrase “adopts the generally accepted principles of international law as part of
the law of the land” does not refer to treaties but customary international law (whether
or not codified in a treaty) and other general principles of law.

Case law:
Tañada v. Angara (272 SCRA 18) – Doctrine of incorporation applied in regard
to obligations arising from ratification of GATT-WTO; pacta sunt servanda was
invoked.

Mijares v. Hon. Ranada (G.R. No. 1393325, April 12, 2005) – Recognition and
enforcement of judgments is among the generally accepted principles of
international law.

(iii)   Theories on the relationship between Municipal Law and International Law:

1. Monism – international law and municipal law belong to only one system with
international law as superior to domestic law; locates basic norm of the
national legal system in the norm of international law;
2. Dualism – international law as distinct from the domestic law system; dualism
of legal origin, subjects and subject matter; sovereign act of municipal law
means it exceeded its competence in international law but does not void
municipal law.
3. Inverted monism– municipal law as superior to international law; denies the
term “law” to international law.
4. Harmonization – the two legal systems are harmonized and given effect.

Chapter II. PERSONALITY UNDER INTERNATIONAL LAW

(a)   States

(i)   Characteristics of Statehood


 
Article 1 of the Convention on Rights and Duties of States (or the 1933 Montevideo
Convention) provides for the qualifications of a State:  
1.   permanent population
2.   defined territory
3. government
4. capacity to enter into relations
Case law:
Case Concerning Rights of Nationals of the United States of America in
Morocco (I.C.J. Reports, 176, 1952) – Even if Morocco is under the Protectorate
of France, the former is still a state in international law.

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Report of the Fifth Committee of First Assembly of the League of Nations, with
reference to Admission to the League of Liechtenstein (6 December 1920) –
Even if denied admission, it remains a sovereign state.

Recent cases: East Timor, (South) Sudan and Kosovo

Case study: The Holy See and the Vatican – sui generis legal personality

(ii)   Recognition

NOTE: Recognition is not mandatory for both state and government.

1.   of States (widely practiced; does not presuppose recognition of government)

2 theories:
(a) Declaratory theory- possession of the essential elements; factual criteria
(b) Constitutive theory- recognition is what constitutes a State.

Status – more of an optional and discretionary political act (as seen in the
cases of the former Yugoslavia and Soviet Union)

2. of governments (recognition presupposes recognition of State; “effectiveness “


rule; is it in control?)

Case law:
Tinoco Arbitration, 1923 – Even if not recognized, may be de facto;
juridically cognizable.

(iii)   Self-determination

Case law:
Declaration on the Granting of Independence to Colonial Territories and
Peoples (U.N. G.A. Res. 1514 (XV), 14 December 1960) – Elements of the
right to self-determination of States:

1. right to determine political status; and,


2. right to pursue their economic, social and cultural development.
Case law:
Western Sahara Case (Advisory Opinion, I.C. J. Reports, 1975) – ultimate
purpose of “sacred trust” was the self-determination and independence of
the peoples concerned; self determination may mean emergence of new
state, association or integration with an independent state.
Current cases on secession and the concept of shared sovereignty:
e.g. The Sudan – Machakos Protocol: plebiscitary consent
Northern Ireland – Good Friday Agreement: plebiscitory consent
Nepal Maoist – power sharing
Aceh (Indonesia) – limited autonomy
Quebec – attempt at a legislative vote to secede

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Kosovo – unilateral declaration of independence


Scotland – referendum
Catalonia – referendum
Bangsamoro – asymmetric relationship; “internal” self-determination

(iv)   Non-State Entities

1. The Commonwealth of Australia v. the State of New South Wales (32 C.L.R.
200, 1923) – New South Wales is not a foreign country which may be sued
without its consent.

2. Cultural Agreement Between Province of Quebec in Canada and France –


Quebec is allowed to enter into such agreement due to the
special status accorded to it under the Canadian Constitution.

3. Mandate System or “Sacred Trust” – colonies and certain other territories


lost in WWI by defeated enemy powers (Germany and Turkey) were placed
under tutelage with implied right to self-determination

Case law:
International Status of South-West Africa (Advisory Opinion, I.C.J. Reports,
1950) – Mandate created by the League of Nations elapsed when the
League ceased to exist.

NOTE: After WWII, the trusteeship system succeeded the mandate system,
EXCEPT for South African mandate over SW – Africa which South Africa
did not want to place under trusteeship.

Legal Consequences for States of the Continued Presence of South Africa in


Namibia (South-West Africa) Notwithstanding Security Council Resolution
276 of 1970 (I.C.J. Reports, 1971) – It is a general principle of law that the
power of termination on account of breach, even if unexpressed, must be
presumed to exist as inherent in any mandate.

4. Case of Belligerent Communities or Insurgent Groups and implications for


States like the Philippines in re: MNLF/MILF and CPP/NPA/NDF –
Obligations in the conduct of armed conflict; context is non-international
armed conflict.

5. Case of Indigenous Peoples (e.g. autonomous regions) – U.N. Declaration


on the Rights of IPs; no right of secession

6. National Liberation Fighters – context is decolonization; engaged in an


international armed conflict.

(b)   International Organizations

(i)   United Nations

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Charter of the United Nations, Articles 1, 2, 7, 104  

Case law:
Reparations for Injuries Suffered in the Service of the United Nations (I.C.J.
Reports, 1949) – Capacity of U.N. under international law to sue for damage
caused to an agent in the form of an international claim; but this is not the
same as saying that it has the same rights and duties as a state; personality of
the U.N. is limited by the purpose of its Charter.

(ii)  European Communities (now EU)

European Economic Community Treaty, Article 211  


European Union, Maastricht Treaty, 1991

(NOTE: EU possesses the most extensive legal capacity. The community


shall in each of the Member States possess the most extensive legal capacity
accorded to legal persons under their respective municipal law. It may sue
and be sued in its own name.)

(c)   Individuals

(i) Classical Rule: Human rights – human being as an object of international law.

(ii) Progression of the Rule: Human being as a subject of international in a limited way.  

Case law:
Judgment of the Nuremberg Tribunal – Law of war imposed a duty on individuals;
Article 228 of the Treaty of Versailles illustrates this view of individual
responsibility; acts deemed criminal in international law may be the subject of
international claim; a state cannot protect the individual accused of the crime if the
state exceeded its competence by allowing/ordering the individual to commit a
crime vs. humanity; officers liable but punishment may be mitigated if they merely
followed orders.
(iii) Recent development:

1. Ad hoc International Criminal Tribunals (Former Yugoslavia, Rwanda and


Cambodia)

2.   Rome Statute of 1998 (ICC) – Individuals may be tried for genocide, crimes
against humanity, war crimes and crime of aggression (core crimes);entry into
force: July 2002; aggression remains to be undefined; only covered crimes
committed after entry into force; no death penalty, no trial in absentia

(NOTE: The Philippine law in regard to international humanitarian law is R.A.


9851, signed into law on December 12, 2009 before the Philippine ratification of
the Rome Statute. It defines punishable acts reflective of the relevant IHL
instruments, including the concept of command responsibility.)

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(d) Corporations

Case law:
Dispute between Texaco Overseas Petroleum Co./California Asiatic Oil Co. and
the Government of the Libyan Arab Republic (Compensation for Nationalized
Property, Arbitral Awards on the Merits, 19 January 1977, 17 I.L.M., 1978) –
Internationalized contracts entered into between a state and a foreign corporation
gives the latter limited capacity by invoking in international law the rights derived
from the contract.

QUERY: May a TNC be granted access to an international tribunal under a treaty?

ANSWER: Yes, for example, under (1) ICSID; (2) Iran – U.S. Claims Tribunal;
and, (3) EUCJ

SYNTHESIS
STATE - STATE – TNC STATE – STATE – STATE – STATE –
STATE (internationalized STATE STATE STATE / STATE /
(in general) contract) (trade) (seas) NSE Individual
(armed (human
conflict) rights)
- ICJ -ICSID WTO- UNCLOS- -ICJ hrs treaty
-EUCJ DSB ITLOS -ICC mechanism

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Chapter III. JURISDICTION OF STATES

Preliminary:
as a concept – it is the capacity to:
1.   legislate or to prescribe laws/rules
2.   enforce laws/rules
as power – it is exercised over:
1.   persons
2.   property
3.   events

(a)   Jurisdiction over Territory

(i)   Title to Territory

Case law:
Island of Palmas Case (Netherlands v. U.S.A., 2 R.I.A.A. 829, Permanent
Court of Arbitration – Test of title in international law is “continuous and
peaceful display of territorial sovereignty”; forms of acquisition of title are:
1. occupation coupled with effectiveness
2. conquest (allowed before)
3. cession, and,
4. accretion;

(NOTE: In international law, title is not sufficient without the first element
of display of State functions.)

Legal Status of Eastern Greenland (P.C.I.J. Reports, series A/B, No. 53,
1933) – Applied Island of Palmas Case.

Western Sahara Case (Advisory Opinion, I.C.J. Reports, 1975) – For


occupation to operate, territory must be terra nullius, i.e. it belonged to no one
prior to occupation.

Philippine Application: Article 1 (National Territory) of 1987 Constitution


Sabah – Cession
Spratlys – Claimants: China, Vietnam, GRP, Malaysia, Brunei, Taiwan

History of RP maritime boundaries:


- 1898 Treaty of Paris
- 1930 US-UK Convention
- 1961 R.A. 3046 (baselines)
- 1968 R.A. 5446 (baselines)
- 1978 PD 1596 (KIG) and PD 1599 (EEZ)
- 1984 Philippine ratification of UNCLOS

Government Position:
-   GRP claims over other island groups: Paracels, Pratas, Macclesfield
Bank, Scarborough Shoal, Mischief Reef

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-   Effective occupation of “Kalayaan Island Group” by GRP through Tomas


Cloma, 1946; and through PD 1596 (1978) an administrative district was
formed to become a Municipality of the Province of Palawan

NOTE:
New Baselines Law is R.A. 9522 (2009): declared KIG and Scarborough
Shoal as “regime of islands” pursuant to Article 121 of UNCLOS III

Case Law:
Magallona v. Executive Secretary (G.R. No. 187167, August 16, 2011) – R.A.
9522 is constitutional; it is not intended to delineate Philippine territory but
merely regulates sea-use rights over maritime zones and continental shelves
that UNCLOS delimits.

PCA ARBITRATION

29 October 2015 – Award on Jurisdiction and Admissibility

Philippine position : The Philippine’s claims (15 in total) are entirely within its
(Tribunal) jurisdiction and are fully admissible.

Chinese position : The Tribunal does not have jurisdiction over the case for the
following reasons:

§   The essence of the subject-matter is the territorial sovereignty over several maritime
features in the SCS, which is beyond the scope of the Convention and does not
concern the interpretation or application of the Convention;
§   China and the Philippines have agreed, through bilateral instruments and the
Declaration on the Conduct of Parties in the SCS, to settle their relevant disputes
through negotiations;
§   Assuming, arguendo, that the subject matter of the arbitration were concerned with
the interpretation or application of the Convention, that subject matter would
constitute an integral part of maritime delimitation falling within the scope of the
declaration filed by China in 2006 which excludes disputes concerning maritime
delimitation from compulsory arbitration.

The Tribunal’s Award:

1.   China’s non-participation does not deprive the Tribunal of jurisdiction.


2.   There is a dispute between the Parties but the matters submitted to arbitration by the
Philippines do not concern sovereignty.
3.   The claims presented by the Philippines do not concern sea boundary delimitation,
and, therefore, not subject to the exception to the dispute settlement provisions of the
Convention.
4.   The Tribunal also ruled that none of the existing instruments to which Philippines and
China are parties to, which provide for other means of dispute settlement, prevent the
Philippines from bringing the present claims to arbitration.

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12 July 2016 –Awards on Merits

Issues raised and the Tribunal’s Rulings

1. China’s historic right claim (nine-dashed line):


Ruling: There is no legal basis for any Chinese historic rights, or sovereign rights and
jurisdiction beyond those provided in the Convention in the waters of the SCS
encompassed by the “nine-dash line”; maritime entitlements are to be claimed
only from baselines along the coast of continental land, island or rock above
water at high tide; all historic rights in EEZ, ECS and high seas were
extinguished upon effectivity of UNCLOS; no evidence existed that China
historically exercised exclusive control over the waters of SCS or their
resources; China aligned its declared maritime rights in accordance with
UNCLOS; China only mentioned historical rights in relation to maritime
claims in 1998 through a law on EEZ and CS.

2. On Geologic Features in the Spratlys:


Ruling: None of the geologic figures (rocks and islands) in the Spratlys is capable of
human habitation or economic life of its own so as to be entitled to a 200 NM
EEZ; therefore, there could be no overlap of EEZ with Palawan, so, the
Tribunal has jurisdiction to rule on the maritime dispute; Spratlys cannot be
taken as a single unit to determine capability to sustain human habitation or
economic life; Itu Aba is only entitled to 12NM territorial sea;

3. On China-Occupied Geologic Features in Spratlys:


Ruling:

HTE Reefs – Fiery Cross Reef, Johnson South Reef, Gaven Reef, Charteron Reef, McKennan
Reef (entitled to 12 NM territorial sea)

LTE Reefs – Mischief and Subi (no territorial sea); Mischief is within Philippine EEZ and
part of CS; only Philippines can erect structures or artificial islands on Mischief;
China’s structures are illegal; although not stated, Subi is within Philippines ECS.

NOTE:
Reed Bank (totally submerged) is part of Philippine EEZ
Ayungin Shoal (occupied by the Philippines) is an LTE within Philippine EEZ.

(A rock above water at high tide is land territory that generates a 12 NM territorial sea and
territorial airspace above the land and its territorial sea. Reclamation may be done with due
regard to its coastal neighbors and the maritime environment.)

(In the EEZ and CS, a coastal state has exclusive right to construct artificial islands or
structures on LTEs.)

4. On Scarborough Shoal:
Ruling: Scarborough Shoal is a HTE entitled to a 12 NM territorial sea only; it is a
traditional fishing ground of various fishermen from the region and China
cannot prevent Filipino fishermen from fishing.

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5. On Harm to the Environment:


Ruling: China violated its obligations under UNCLOS for having dredged and built
islands on reefs and for failing to prevent its fishermen from harvesting
endangered species like sea turtles, corals and giant clams in the Spratlys and
Scarborough Shoal causing “permanent and irreparable harm to the coral reef
system.”

Enforcement of the Award

By coastal state – conduct of naval and aerial patrols in EEZ; exploitation of resources

By other states – freedom of navigation and overflight in high seas and EEZs

(ii)   Airspace (flight space)

Paris Convention, October 13, 1919 – State with exclusive sovereignty.

Convention on International Civil Aviation, signed at Chicago on 7 December


1944 – prohibits entry of state aircraft without authorization by special
agreement

(iii)   Internal and Territorial Waters

Case law:
Fisheries Case (United Kingdom v. Norway, I.C.J. Reports, 1951) – Straight
baseline allowed and delimitation of territorial waters.

The Corfu Channel Case (I.C.J. Reports, 1949) – Innocent passage in


international straits allowed.
 
      1982 Convention on the Law of the Sea, Articles 3, 8  
(b)   Jurisdiction over Adjacent Maritime Seas

(i)   Continental Shelf

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Case law:
North Sea Continental Shelf Cases (Germany v. Denmark/Holland, 8
I.L.M. 340, 1969) – What confers title ipso jure to continental shelf is the
fact that the submarine areas concerned may be deemed to be actually part
of the territory of the coastal state in the sense that, although covered with
water, they are a prolongation or continuation of that territory.  

Gulf of Maine (Canada/USA, I.C.J. Reports, 1984) – Is geographic


adjacency basis for title to continental shelf?

Libya/Malta Continental Shelf Case (I.C.J. Reports, 1985) – Distance and


natural prolongation as complementary.

1982 Convention on the Law of the Sea, Article 76

(ii)   Exclusive Economic Zone

Case law:
Fisheries Jurisdiction Case (U.K. v. Iceland, Merits, I.C.J. Reports, 1974) –
Exclusive rights over fishery zone must take into account interests of other
States.

1982 Convention on the Law of the Sea, Articles 55, 56, 57, 211, 123

(c)   Jurisdiction over Persons and Economic Activity

Preliminary Theories (applicable to the exercise of criminal and civil


jurisdiction):
1. Nationality – civil law follows national wherever he/she may be.
2. Passive personality – punish aliens abroad who injures one’s citizen.
3. Security principle – punish aliens for acts v. a State’s security,
independence and territorial integrity
4. Universality – e.g. piracy, crimes against humanity, etc.
5. Objective territoriality- elements of crime occurred in 2 states

(i)   Criminal Jurisdiction


 
1. On the general theory of criminal jurisdiction
GR: Vessels on high seas are subject to authority of flag-State
Exception: piracy, slave trade, hot pursuit, right of approach  

Case law: (old rule)


The S.S. Lotus (2 World Court Reports, 1920) – Concurrent jurisdiction of flag
State and other State affected- this rule applies only if it happens on the high
seas (controversial decision; 6-6 vote); but see the new rule below.  

New Rule: See A97, UNCLOS - the Rule today is that no penal or
administrative proceedings may be instituted against the master of a ship
except before the judicial or administrative authorities either of the:

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a. flag State, or
b. State of which such person is a national.

The Attorney-General of the Government of Israel v. Eichmann (36 I.L.R. 277,


1962) – Universal authority to try certain persons wherever found outside of
the place of the commission of crime; applies to serious crimes under
international law, such as, crimes against humanity, war crimes, piracy,
slavery, crimes against peace, genocide and torture. (See development of the
Princeton Principles on Universal Jurisdiction.)

(Philippines)

People v. Tulin (G.R. No. 111709, August 30, 2009) – The crime of piracy is
punishable under PD 532. Even if the Philippine-operated vessel (M/T
Tabangao owned by PNOC) was outside Philippine waters, the crime of piracy
is an exception to the general rule on territoriality. Piracy is a crime against the
whole world.

2. On the rules governing Extradition under international law:

Purpose: International judicial assistance to deny criminals safe have


abroad. There is a divergence of practice: (a) common law-irrespective
of nationality; (b) civil law- nationality rule.
Requisites: One should ask
a. Is there a treaty?
b. Is the crime listed?

GR: There is no duty to extradite where there is no treaty.


Exception – Even with treaty, crimes with political complexion (e.g. sedition,
treason, espionage, coup d’ etat, military offense): “exempt”
Exception to the exception: “attentat clause”- assassination of heads of States,
etc.
: war crimes, crimes v. humanity, genocide,
terrorist acts

NOTE: If there is no treaty, states may (by comity) voluntarily extradite a


person subject to human rights consideration like “non-refoulement” under
the 1951 Refugee Convention. Summary deportation is allowed (de facto
deportation).

NOTE: Double criminality – Recent multilateral treaties define extraditable


offenses based on a minimum level of punishment (e.g. 1 year). There is no
need to define in equivalent terms the offense under the laws of both states.
The offense must be understood similarly in substance in both states.

NOTE: Double jeopardy applies.

NOTE: Principle of specialty – Requesting state may not try the individual for
any pre-extradition offense other than the one for which extradition was

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asked, or to him more severely than was stipulated by the law of the
requesting state, UNLESS, state of refuge waives requirement.

Case law:
In the Matter of the Requested Extradition of Joseph Patrick Thomas
Doherty
(7 Vand. J.T. L., 1984) – Denial of extradition request for an IRA member
in the US who escaped from Belfast prison and convicted by Northern Irish
court in absentia for murder.

3. Philippine Extradition Law (P.D. 1069)

Case law:
Secretary of Justice v. Hon. Lantion (G.R. No. 139465, October 17, 2000)
– Mark Jimenez is without any right to notice and hearing during the
evaluation stage of an extradition process by the DFA under the RP-US
Extradition Treaty.

(NOTE: Extradition court may adjudge a person as extraditable but


President has final say. Extradition is not criminal in nature – sui generis;
thus, Bill of Rights provisions on aspects of due process in criminal
proceedings not applicable- “summary”. But this ruling will later on be
qualified by the Olalia case of 2007)

Secretary of Justice v. Muñoz (GR No. 140520, December 18, 2000) – In re:
to the RP-Hongkong Extradition Treaty, the Court held that the provisional
arrest of respondent was valid noting that the requirements of the
Agreement on documentation and the finding of probable cause have been
complied with. (See new case on Gov’t. of HongKong v. Olalia, GR
153675, April 19, 2007- allowing Munoz bail even as an extraditee. This
overturns the Purganan ruling.)

Government of U.S.A. v. Hon. Purganan (G.R. No. 148571, September 24,


2002) – The right to bail in extradition is not available. The ultimate
purpose of extradition proceedings in court is to determine whether the
extradition request complies with the extradition treaty. But, in exceptional
cases, bail may issue (as element of due process), provided:
a. accused is not a flight risk; and,
b. compelling circumstances warrant.

Rodriguez v. RTC of Manila (G.R. No. 157977, February 27, 2006) – A


prospective extraditee is entitled to notice and hearing before the
cancellation of his or her own bail.

(NOTE: Purganan ruling overturned by 2007 Gov’t. of Hongkong case.)

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Government of Hongkong v. Olalia (G.R. No. 153675, April 19, 2007) –


The modern trend in public international law is the primacy placed on the
worth of the individual person and the sanctity of human rights. While
extradition is not a criminal proceeding, it is characterized by the following:
(a) it entails a deprivation of liberty on the part of the potential extraditee
and, (b) the means employed to attain the purpose of extradition is also the
machinery of criminal law. While our extradition law does not provide for
the grant of bail, there is no provision prohibiting the extraditee from filing
a motion for bail, a right to due process. The extraditee must establish
“clear and convincing proof” that he or she is not a flight risk and will abide
with all the orders of the extradition court.

4. On the rules governing commission of crimes on board an aircraft

Tokyo Convention of 1963 – for extradition purposes, a crime may be


considered as having been committed in the “state of registry of the
aircraft”; but jurisdiction by another Contracting State may be had if the
offense:

(a) has an effect on its territory;


(b) has been committed by or against its national or a permanent resident
therein;
(c) is against its national security;
(d) relates to a breach of its national rules on flight;
(e) is the subject of an exercise of jurisdiction necessary to ensure the
observance of an obligation of such state under a multilateral
agreement.

Montreal Convention of 1971– Article 8(2) becomes the basis for


extradition even if there is no extradition treaty with another party to the
Convention.

5. On Visiting Forces/Military Bases – see Nicolas case.

(ii)   Civil Jurisdiction

R.Y. Jennings, Extraterritorial Jurisdiction and the United States Antitrust


Laws; Sherman Act of 1890 and Federal Trade Commission Act and
Clayton Act of 1914 – intended “to protect trade and commerce against
unlawful restraints and monopolies.”; should not contradict the local law.

(iii)   Immunity from Jurisdiction

1. State Immunity (Sovereign immunity): Head of State and the State itself  
 Basis: equality and independence of States

Distinguish:
a. Immunity of State – an aspect of act of State
b. Act of State theory – “acts of State carried out within its own
territory cannot be challenged in the courts of other States”; applies to

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acts of agents of the State; exceptions: war crimes, crimes v. peace,


crimes against humanity. Rationale: Courts should not embarrass the
Executive in its conduct of foreign relations by questioning the acts of
foreign states.
           
              On scope of State Immunity
a. Absolute
b. Restrictive – determine nature of the act
(1) public (jure imperii) – immune
(2) private(jure gestionis) – not immune  

Case law:
Victory Transport Inc. v. Comisaria General de Abastecimientos y
Transportes (35 I.L.R., 110 U.S.C.A. 2d Circ., 1994) – Act of
transporting wheat during peacetime is not an act jure imperii.

Government of the Democratic Republic of the Congo v. Venne (22


D.L.R. (3d) 669, 1972) – Congo’s entry into contract with a Canadian
architect for sketching its pavilion is a public act.

I1 Congreso del Partido- Cuban Sugar Trade (2 All E.R. 1064, 1981) –
Playa Larga is a Cuban owned vessel but operated by Mambisa, a Cuban
State Trading Co. not a Department of the Cuban Government. Mambisa
sold sugar to a Chilean Co. and shipped the merchandise thru the Playa
Larga. Restrictive immunity applied in this case.

Trendtex Trading Corporation v. Central Bank of Nigeria (1 All E.R.


881, 1977 – Issuance by Nigerian CB of letter of credit is purely
commercial in character and may be basis of suit)

Philippines: Article 16, Sec. 3 of the Constitution (immunity from suit)

Case law (Philippines):


Sanders v. Veridiano (162 SCRA 88) – A special services director of the
former U.S. naval station in Olongapo was sued in a personal capacity
for alleged libelous letter; court declared immunity because the acts
complained of were done in the discharge of official functions.

U.S. v. Guinto (182 SCRA 644) – The act of soliciting bids by the U.S.
AF is proprietary in nature.

Chuidian v. Sandiganbayan (G.R. No. 139941, January 19, 2001) – A


letter of credit issued in Manila was the basis of a suit by an alleged
Marcos-crony to compel PNB to pay proceeds of the L/C before a US
District Court. The Federal Court refused to compel PNB stating that
PCGG freeze orders are acts of state.

Dayrit v. Phil. Pharmawealth (G.R. No. 169304, March 13, 2007) –


Suing individual petitioners in their individual capacities for damages in

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connection with abuse of official positions in order for Pharmawealth not


to be awarded a contract is permissible and an actionable wrong.

Professional Video v. TESDA (G.R. No. 155504, June 26, 2009) –


TESDA performs governmental functions. State immunity applies in this
case notwithstanding TESDA’s entry into contract for production of
PVC cards for its trainees.

ATCI v. Echin (G.R. No. 178551, October 11, 2010) – Echin was hired
by ATCI in behalf of the Ministry of Public Health of Kuwait. An
alleged illegal dismissal case was filed against ATCI and the Ministry.
ATCI cannot plead immunity of the Ministry where the solidary
obligation may be frustrated.

Gunigundo v. Sandiganbayan (G.R. No. 124772, August 14, 2007) – Act


of state doctrine does not apply in this case. The Sandiganbayan will not
review the freeze orders of Swiss officials in Civil Case No. 0164, but
will only examine propriety of maintaining PCGG’s position with
respect to complainant’s accounts with BTAG for the purpose of
determining propriety of issuing a writ against PCGG and OSG.

Case law (U.K.):


Pinochet Case (House of Lords, November 25, 1998) – Is Pinochet
entitled to immunity as former head of State? Under the “Operativo
Condor”, he, together with other governments (Argentina) organized the
commission of crimes (e.g torture, kidnapping) through the police and
secret service. Criminal complaints on “actio popularis” were filed by
private citizens in Spain against Pinochet. The Spanish court ordered the
arrest of Pinochet who was then in United Kingdom. A provisional
warrant of arrest was issued by a London magistrate under the U.K.
Extradition Act of 1989. Pinochet argued before the Divisional Court of
the Queen’s Bench Division that as former head of State, he can not be
prosecuted at common law because he acted in a sovereign capacity. The
Divisional Court quashed the warrants of arrest but on appeal before the
House of Lords, it was held that Pinochet was not immune from
prosecution in U.K. courts for crimes under international law.
(Later, the House of Lords set aside its decision because the Appellate
Committee had been improperly constituted. On rehearing, the
Government of Chile intervened to “assert its own interest and right to
have these matters dealt with in Chile,” presenting immunity not as a
shield for Pinochet but for its own sovereignty.)

(NOTE: The following remedies exist:


Pinochet may be tried (a) in his own country; (b) in any other country
that can assert jurisdiction, provided Chile waives immunity; (c) before
the International Criminal Court; or, (d) before a specially constituted
international court.)

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2. Diplomatic and Consular Immunity

Vienna Convention on Diplomatic Relations (1961) – mostly codification of


customary international law
Vienna Convention on Consular Relations (1963) – some customary
international law
Gen. Convention on the Privileges and Immunities of the U.N. (1946)

Remedy of individual:
1.   sue in home State of diplomat
2.   waiver by State of nationality of diplomat
3.   declare diplomat persona non grata

Case law:
U.S. Diplomatic and Consular Staff in Tehran (U.S. v. Iran, I.C.J. Reports
3, 1980) – Iran violated the 1961 and 1963 Conventions for failing to take
appropriate steps to ensure protection of U.S. embassy and staff and
property from attacks by militants students. There was state responsibility
for having even approved of the acts of these demonstrators.

Regina v. Palacios (7 D.L.R. 112, 4th, 1984) – diplomatic immunity ceases


to be enjoyed at the moment the diplomat leaves the country, or on expiry
of a reasonable period in which to do so.

Philippines: Excerpts from the 1997 Manual on Immunities and Privileges


(DFA)

 Case law:
Diplomats/Consuls
Holy See v. Rosario (238 SCRA 524) - Holy See enjoys immunity
where the land subject of annulment was bought for site of Apostolic
Nunciature.  

Minucher v. CA (214 SCRA 242 and G.R No. 142396, February 11,
2003) - A U.S. diplomatic staff who is a member of the Drug
Enforcement Administration of the DOJ was found to be immune from
suit for alleged criminal/tortuous conduct. As an agent he was allowed
by the Philippine government to conduct activities to contain the drug
traffic.

Indonesia v. Vinzon (G.R. No. 154705, June 26, 2003) – An


Indonesian Official entered into a maintenance
agreement to maintain specified equipment at
the embassy. The agreement referred to Philippine law for
purposes of any dispute settlement. The court held that this did not
constitute a waiver of diplomatic immunity. Submission to local
jurisdiction must be clear and unequivocal.

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Deutsche v. CA (G.R. No. 152318, April 16, 2009) – The GTZ is


equivalent to a Philippine corporation organized under the Corporation
Code but owned of sovereign or diplomatic immunity.

International Organizations
DFA v. NLRC (262 SCRA 39) – Illegal dismissal suit against ADB;
immune.  

Lasco v. UN (241 SCRA 681) – Illegal dismissal suit against U.N.


Revolving Fund; immune.

WHO v. Aquino (48 SCRA 242) – Crates consigned to WHO diplomat


exempt from search.

ICMC v. Calleja (190 SCRA 130) – Disallowed a petition for


certification election.

Liang v. People (G.R. No. 125865, January 28, 2000) – A criminal case
for slander against an ADB employee may prosper because it was not
done in the exercise of official functions.

Sps. Lacierda v. Platon (G.R. No. 157141, August 31, 2005) –


SEAFDEC is an international organization which is immune from suits
being clothed with diplomatic immunity.

(d)   Areas Not Subject to the Jurisdiction of Individual States

(i) High Seas


Allowable acts by any State: navigation, overflight, submarine
cables/pipelines, construction of artificial islands or any installations,
fishing, research, etc. …

1982 Convention on the Law of the Sea, Articles 87, 97


1982 Convention on the Law of the Sea, Definition of Piracy, Article 101  

(ii) Deep Seabed (also called The AREA)


Common heritage of mankind – Open for peaceful purposes and for
exploitation for the benefit of mankind; right of a coastal State to prevent or
mitigate any grave and imminent danger to its coastline or environment;
governed by the International Seabed Authority.

Declaration of Principles Governing the Seabed and the Ocean Floor and the
Subsoil Thereof, Beyond the Limits of National Jurisdiction – Resolution
2749 XXV (1970)

1982 Convention on the Law of the Sea, Part XI

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(iii) Outer Space


Province of all mankind – Not subject to national appropriation; no nuclear
weapons in orbit; astronauts are “envoys of mankind” and States are
obliged to render assistance to them in emergency landing; there is
international responsibility for national activities in outer space; absolute
liability for damage caused by space objects.

Concept of “geostationary orbit” and the “spatial” test: There is no universally


accepted definition of outer space and the problem of demarcation between
air space and outer space is a old as the space age itself. Some suggest a
spatialist test – arbitrary height of 96-110 kms. from the equator, limit of air
flight, limit of the atmosphere, etc., …

Treaty on Principles Governing the Activities of States in Exploration of Outer


Space and the Use of Outer Space, Including the Moon and other Celestial
Bodies (1967)

Convention on Liability for Damage Caused by Space Objects (1972)

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Chapter IV. RESPONSIBILITY OF STATES

Q: Can States be criminally responsible?


A: Highly debatable.

(a)   General Principles of Responsibility

(i) Scope: concerned with incidence and consequences of illegal acts and the
payment of compensation

(ii) Theory – internationally wrongful act or omission:


1.  international delict – most cases
2.  international crime – e.g. aggression, colonization by force, slavery, genocide,
apartheid, mass pollution

(iii) Distinguish: law of treaties and general principles of responsibility

(iv) Distinguish:
1. objective responsibility- strict liability (good or bad faith is immaterial)
2. subjective- fault theory

(v) Examples:
1. breach of treaty
2. injury to territory, property, diplomat of a State
3. injury to person/property of aliens

(vi) Reparation required for injury caused:


1. restitution
2. damages

(vii) Requisites:
1. act/omission attributable to the State
2. breach of an international obligation

(viii) Categories:
1. Direct – when injury is against another State (any of its organs or agents).
             2. Indirect – against the person or property of a national of another State.  
(ix) Imputability: (direct responsibility)

1.   State Organs

a. Executive – e.g. failure to take appropriate steps to punish culprits who


are police officers.

b. Legislative – e.g. if a treaty requires incorporation of certain rules in


domestic law, failure to do so entails responsibility.

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c. Judiciary – e.g. if the court commits errors in the application and


interpretation of treaties or fails to give effect to a treaty or is
unable to do so because the necessary change in or addition
to, the national law has not been made, its judgment involves
the State in a breach of treaty.

2. Territorial governmental authority (LGUs)

3. Persons/groups authorized by the State

(x) Ultra vires acts of State organs and officials – considered act of State even if
beyond the competence of the agent for as long as there is proof of apparent authority
or the act was done within the general scope of authority. An example is when police
officers take revenge against another person but seemingly acted in the role of police
to the average observer.

(NOTE: Abuse of Rights – there could be compensation for the injurious


consequences of lawful acts of State organs or officials. An example is Article 22,
par. 3 of the Convention on the High Seas which allows compensation for loss or
damage caused as a result of the exercise of the right of warships to board merchants
when suspicious circumstances would warrant.)

Case law:
Youmans Case (RIAA iv. 110, 1926) – Here, soldiers were sent to protect
aliens besieged by rioters but ultimately joined in the attack which resulted
in the killing of the aliens. Soldiers inflicted personal injuries or committed
wanton destruction or looting act in disobedience of some rules laid down
by superior authority.

Caire Claim Case (France v. Mexico, French-Mexican Claims


Commission, RIAA v. 516, 1929) – A French national was killed in Mexico
by Mexican forces after failing to pay ransom money. Objective
responsibility applies in this case wherein the military officers conducted
themselves as officers in the brigade. The officers even used the means
placed at their disposition by virtue of their capacity. The ultimate test is
the amount of State control which ought to have been exercised under the
circumstances. (But distinguish this from the earlier case of Youmans.)

(xi) Acts of private citizens and rebels:

1.   Private citizen – As a rule, acts of private citizens do not entail State


responsibility. In localized riots and mob violence, the State has the duty to
take reasonable precautionary and preventive action to protect foreign public
and private property.
2.   Rebels – Insurrectional movement’s act is act of State once it is established as
the new government. Belligerent groups may be held responsible for their acts
during the armed conflict. There is a duty on the part of the State to prevent or
suppress the insurrection using the standard of due diligence; however, a
higher standard of protection applies to diplomats and consuls.

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Case law:
Home Missionary Society Case (RIAA vi. 42, 1920) – This religious
Society suffered losses during the rebellion in the Protectorate of Sierra
Leone. The U.S. claimed compensation on behalf of the Society alleging
that the British Government failed to take appropriate steps for the
maintenance of order. This claim was dismissed because there was an
assumption of risk on the part of the Society and there was no failure of
duty based on the facts.

                  (xii) International crimes and delicts


International Law Commission Articles on State Responsibility, Articles 1-10,
19  

(b)   Responsibility for Acts Affecting Individuals

(i) Traditional International Liability


 
1. Theory of denial of justice
                             
                             Case law:
United States (Chattin) v. Mexico (4 R.I.A.A. 282, 1927 – The arrest, trial
and conviction of an American national in Mexico was deemed irregular
and in violation of international standards, thus, giving rise to
responsibility.  

2. Harvard Research Draft, definition (Article 9) – “…unwarranted delay or


obstruction of access to courts, gross deficiency in the administration of
judicial or remedial process, failure to provide those guarantees which are
generally considered indispensable to the proper administration of justice,
or a manifestly unjust judgment. An error of a national court which does
not produce manifest injustice is not a denial of justice.”

(ii) International Protection of Human Rights  


 
1.   Human Rights Principles and Enforcement Mechanisms

a. U.N. Charter, Articles 1(3), 55, 56 – State obligation to respect and


promote human rights.

b. Universal Declaration of Human Rights (1948) – Deemed by some


international legal scholars as customary international law.  

c. International Covenant on Civil and Political Rights (1966) and


Optional Protocols 1 and 2 – OP1 is on individual communications
procedure through the HR Committee. OP2 is of the abolition of the
death penalty (GRP ratified the ICCPR and OP1 but is not a signatory
to OP2); most rights are self-executing rights.

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d. International Covenant on Economic, Social & Cultural Rights (1966) –


There is only a reportorial duty; generally, ecosoc rights are based on
progressive realization principle. Ratified by GRP.

e. Convention on the Elimination of Racial Discrimination (1969) –


There are individual communications procedure and State to State
communications. Ratified by GRP.

f. Convention on the Elimination of Discrimination against Women


(1981) and Optional Protocol (2000) – There is an optional protocol on
individual communication and inquiry procedures. All ratified by GRP.

g. Convention against Torture (1987) – There are individual


communications procedure and State to State communications.
Ratified by GRP.

h. Convention on the Rights of the Child (1990) and Optional Protocols


on Sale, Prostitution and Pornography (2002) and Children in
Situations of Armed Conflict (2002)- There is a reportorial duty to a
CRC Committee. All ratified by GRP.

i. Migrant Workers Convention (2003) –Ratified by GRP

2. Concepts of International Minimum Standard and National Treatment

These apply to certain areas of activity of aliens, like investment and trade
matters; for the protection of aliens against discriminatory acts of the host
State.
(NOTE: Alien is treated like a national of host State in all respects as to
property right – if protection pertains to the “person” of the alien, apply
international human rights law principles.)

Case law:
South-West Africa Cases, Second Phase (I.C.J. Reports, 1966,
Dissenting Opinion of Judge Tanaka) – “Apartheid” as violation of
principle of equality before the law.

(Philippines)
Mejoff v. Director of Prisons (90 Phil. 70) – Application of the UDHR
by Philippine Supreme Court in a habeas corpus case of an alien of
Russian descent who was brought to the country from Shanghai as a
secret operative by the Japanese forces. After the war, he was arrested
as a Japanese spy by the U.S. Army. He was detained by the
Commonwealth Government and was detained for 2 years after he was
ordered deported. Article 8 of UDHR proclaimed that “everyone has the
right to an effective remedy by the competent national tribunals for acts
violating … fundamental rights…”

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Marcos v. Manglapus (177 SCRA 668; 178 SCRA 760) – Application


of the UDHR and ICCPR on the right to return of the Marcoses from
Hawaii even if the Bill of Rights did not specify this right. However,
the Court held that the GRP did not act arbitrarily in determining that
the return of the Marcoses under the circumstances then existing posed
a serious threat to national interest and welfare.

International School Alliance of School Educators v. Quisumbing (G.R.


No.128845, June 1, 2000) - Application of ICESCR to a suit for
recovery of compensation on the basis of equal pay for equal work. The
Court required the International School to treat local and foreign hired
teachers equally.

Republic v. Sandiganbayan (G.R. No. 104768, July 21, 2003) – The


revolutionary government following EDSA 1 in 1986 was subject to the
ICCPR and UDHR.

Central Bank Employees v. BSP (GR 148208, December 14, 2004) –


The equality provisions of international human rights instruments
impose a measure of positive obligation on State Parties to eradicate
discrimination.

(Writ of Amparo)
Sec. of National Defense v. Manalo (G.R. No. 180906, October 7,
2008); Reyes v. CA (GR 182161, December 3, 2009); Rubrico v. GMA
(G.R. No. 183871, February 18, 2010); and, BOAC v. Cadapan (G.R.
Nos. 184461-62, May 31, 2011) – The writ of amparo is a remedial
measure designed to direct specific courses of action to government
agencies to safeguard the constitutional right to life, liberty and security
of aggrieved individuals.

Biraogo v. Truth Commission (G.R. Nos. 192935 and 193036,


December 7, 2010) – E.O. No.1 insofar as it intended to investigate
human rights violations is consistent with generally accepted principles
of international law. But it is unconstitutional due to its limitation of its
investigation to the GMA administration in violation of the equal
protection clause.

(iii) The Taking of Foreign-Owned Property: Nationalization and Expropriation

GR: State with right to expropriate foreign-owned property for a public


purpose.
Exception: if arbitrary or discriminatory or motivated by considerations of
political nature.

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(NOTE: Unsettled – amount of compensation and what constitutes


expropriation. Two views on the matter:
U.S. and capitalist States – “prompt, adequate, effective”
Socialist States – no compensation)

Norm/practice – “Bilateral Investment Treaties” would provide the


standard of compensation.

United Nations Declaration on Permanent Sovereignty over Natural


Resources, 1962, U.N.G.A. Resolution 1803 (XVII) – There is an
inalienable right of State to freely dispose of natural wealth and
resources; bases for expropriation are public utility, security and national
interest; standard - “appropriate” compensation.

United Nations Resolution 3171 (XXVIII) on Permanent Sovereignty


over Natural Resources, December 17, 1973 – State is entitled to
determine compensation and mode of payment; and dispute on this matter
to be settled based on national legislation.

Charter of Economic Rights and Duties of States, 1974, U.N.G.A.


Resolution 3281 (XXIX) – Right of a State to regulate foreign investment
without preferential treatment; standard - “appropriate” compensation.

Proposed Amendment to Article 2 of Charter of Economic Rights and


Duties of States – Developing States rejected amendment to Article 2
aimed at using the term “just compensation”.

Case law:
Texaco Overseas Petroleum Co./California Asiatic Oil Co. and the
Government of Libyan Arab Republic (Compensation for Nationalized
Property, 19 January 1977, 17 I.L.M. 1) – Companies entitled to
“restitutio in integrum” on the basis of violation of an
internationalized contract; tribunal disregarded issue of
nationalization; reference to general principles of law outside internal
law – “breach of contract”; private party has specific but limited
“international capacities” in this case.

(NOTE: International law allows the operation of rules of private


international law. When a claim arises based on breach of contract
between an alien and a government, the issue may be decided in
accordance with the applicable municipal law designated by the rules
of private international law.)

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(c)   Responsibility for Environmental Harm


 
   Case law:
The Trail Smelter Arbitration (3 R.I.A.A.1905, 1938/1941) – State is
bound to protect other States against injurious acts by individuals from
within its jurisdiction.  

            The Corfu Channel Case (supra.)- Albania could not permit use of its
territory to harm others.

The Stockholm Principles (1972) – The duty of States to notify other


States of activities that may have extra-territorial effect was not accepted
(but see U.N.G.A. Resolution 2995 (XXVII).

(NOTE: The Stockholm Declaration was adopted in 1972 by the 113


participating States. It contains 26 principles which provide the basis of
an international policy for the protection and improvement of the
environment, of which Principles 21 and 22 directly concern
international law. Principle 21 provides for the right of a State to exploit
its own natural resources and the duty not to cause harm to others or to
places outside of its territory in the course of their exploitation. Principle
22 imposes an obligation to cooperate to develop the duty further.)  

U.N.G.A. Resolution 2995 (XXVII)

U.N.G.A. Resolution 2996 (XXVII)

International Law Association Resolution 1972

United Nations Environment Program: Governing Council Decisions


Concerning Policy Objectives, 12 I.L.M. 1183 (1973)

Rio Declaration on Environment and Development,


A/CONF.151/5/Rev.1, 31 I.L.M. 874 (1992) – Emphasized the right of a
State to exploit resources but with the corresponding duty not to damage
the environment; “special situation of developing countries” considered;
trade policy measures for environmental purposes should not constitute as
means for arbitrary or unjustifiable discrimination or a disguised
restriction on international trade; there is a duty to notify other States
regarding disasters.

Montreal Protocol on Substances that Deplete the Ozone Layer-expressly


provides for the periodic review and assessment of control measures
taken and their adjustment whenever deemed necessary.

1989 Basel Convention on the Transboundary Movement of Hazardous


Wastes - authorizes the regularly scheduled meetings of the conference of
the parties to take legislative initiatives to ensure the effectiveness and
continuous improvement of the regime.

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Precautionary Principle – The obligation requires a State to abstain from


conduct that carries a significant risk of harm. It is an obligation that has
several procedural companion-elements, namely: the duty of prior
information and of consultation. These obligations have become part of
customary international law according to legal scholars. The evolution of
a duty of prevention can be traced from its conceptual origin in the Trail
Smelter decision all the way to the international law commission’s focus
on prevention and its work on the liability topic.

Case law:
DENR v. Concerned Residents (G.R. Nos. 171947-48, December 18,
2008) – Philippines is a member of the International Marine
Organization and a signatory to the International Convention for the
Prevention of Pollution from Ships. Clean-up of Manila Bay is a duty
which covers general pollution incidents.

(d)   International Claims

GR: Every State has a duty to protect its national. The State should establish its
legal interest by proving the nationality of the claim.
 
         Forms of protection:  
1. Protest
2. Enquiry
3. Negotiation
4. Submission to arbitral tribunal/court

Precondition: exhaustion of local remedies – if indirect responsibility.


(NOTE: by taking up the case of a national, a State is, in reality, asserting its own
rights – its right to ensure, in the person of its subject, respect for the rules of
international law. Therefore, the subject matter of the claim is the individual and
his property, but the claim is that of the STATE.)

Case law:
United States [North American Dredging Co. of Texas] v. United Mexican
States (4 R.I.A.A. 26, 1927); See dissent of Judge Nielsen in the
subsequent case of International Fisheries Co., (Nielsen’s Opinions 207,
1931) – Calvo clause: “A contract containing a clause depriving the party
subscribing to the clause of the right to submit any claims connected with
his contract to an international commission.”; the individual can make
such promise but can not deprive his/her own state in applying
international remedies; however, there is no rule of international law
giving the State the right to intervene in order to strike down such a lawful
contract; the remedy of denial of justice is independent of the violation of
contract.

The Tattler (United States v. Great Britain, Nielsen Rep. 489, 1920) – The
American citizens’ waiver of claims (and right of libel) in consideration of
the release of the American schooner Tattler are not binding upon the U.S.
government.

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The Panevezys-Saldutiskis Railway Case (Estonia v. Lithuania, P.C.I.J.


Series A/B, No. 76, 1939) – The test of right of claim by a State is the
“bond of nationality” which existed at the time of the injury occurred. It is
also an established rule that exhaustion of remedies afforded by municipal
law must be availed of except if there is an ineffective remedy.

Nottebohm Case (Liechtenstein v. Guatemala, I.C.J. Reports 4, 1955) –


The naturalization of Nottebohm under Liechtenstein law will not be
sufficient to allow a claim in his behalf. It was shown that Nottebohm was
a former German national who has resided in Guatemala for more than 30
years (since 1905). It was only in October 1939, after the opening of the
2nd WW that he submitted an application for naturalization. (This was
obviously an attempt to enable him to substitute for his status as a national
of a belligerent German State that of a national of a neutral Liechtenstein
and evade proceedings against him and his property interests.) He
continued to stay in Guatemala until his removal as a result of war
measures in 1943. He attempted to return to Guatemala but was refused,
for which reason he finally went to Liechtenstein in 1946. The Court held
that in cases of dual nationality, where the question arose with regard to
the exercise of protection, the “real and effective nationality” test has been
applied.

Case Concerning the Barcelona Traction (Belgium v. Spain, I.C.J. Reports


3, 1970) – In determining nationality of a corporation, the “place of
incorporation and the location of the registered office” are material
elements. It was found that Barcelona Traction Co. was incorporated under
Canadian law and had its registered office in Canada. Belgium did not
have capacity to espouse the claim of Belgian shareholders in the
company.

Banco Nacional de Cuba v. Peter L.F. Sabbatino (376 U.S. 398, 1964) –
The Cuban Government characterized the reduction in the Cuban sugar
quota by the U.S. as an act of “aggression, for political purpose,” which
prompted the Cuban President to nationalize by forced expropriation
property or enterprises in which American nationals had an interest. The
U.S. Supreme Court held that “(h)owever offensive to the public policy of
(the U.S.) and its constituent States an expropriation of this kind may be,
we conclude that both the national interest and progress toward the goal of
establishing the rule of law among nations are best served by maintaining
intact the act of state doctrine in this realm of its application.”

Alfred Dunhill of London Inc. v. The Republic of Cuba (425 U.S. 682, 48
L.Ed. 2d.301, 1976) – U.S. Supreme Court did not apply the act of state
doctrine to this case wherein the Cuban Government failed to return to
Alfred Dunhill of London, Inc. funds mistakenly paid by Dunhill for cigars
that had been sold to Dunhill by certain expropriated Cuban cigar
businesses. The act relied upon by Cuba was an act arising out of the
conduct by Cuba’s agents in the operation of cigar businesses for profit.

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Buttes Gas and Oil Co. and Another v. Hammer and Another (3 W.L.R.
787, H.L., 1981) – In a litigation instituted in the U.K. between two
petroleum companies, there were allegations of conspiracy to cheat and
defraud the U.K. involving foreign rulers in the Persian Gulf region. The
plaintiffs (Buttes) applied for an order that the court should not exercise
jurisdiction in respect of specified matters said to be “acts of state” of the
governments of Sharjah, Umm al Qaiwain, Iran and the U.K. The issue
arose from a press conference given in London in 1970 by Dr. Hammer
wherein he accused Buttes of using improper methods and colluding with
the ruler of Sharjah to backdate a decree by the ruler extending the
territorial waters of Sharjah, from 3 miles to 12 miles so as to obtain for
themselves the benefit of the oil-bearing deposit at the location which Dr.
Hammer claimed was discovered by and belonging to a competitor of
Buttes. It was held that the court cannot entertain the suit for it would
bring to trial non-justiciable issues.

(Philippines)
Vinuya v. Romulo (619 SCRA 533) – Espousal of claim on behalf of the
“Malaya Lolas” is discretionary upon the State (Peace Treaty of 1951
satisfied claims).

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Chapter V. RESOLUTION OF DISPUTES

(a)   Use of Force

(i)   General

Grotius, On The Rights of War and Peace (1901)


General Treaty for the Renunciation of War
Briand-Kellogg Pact (1928)
Charter of the United Nations, Articles 2 (3) (4), Articles 39-42
General Assembly Resolution 3314 XXX on the Definition of Aggression
(problematic because of lack of categorical definition)
Pro-democratic Invasion

(ii)   The Concepts of Self-Defense and Self Protection


 
Charter of the United Nations, Article 51
Right of States to Use Armed Force  

NOTE: Problem areas – Anticipatory self-defense, humanitarian intervention,


right to rescue a national “mercenaries”), responsibility to protect

(iii)   The Legality of Reprisals

Distinction: Reprisals in peacetime (counter measures) and belligerent


reprisals in wartime (to induce compliance with laws of war)
Legal Implications of Israel’s 1982 Invasion into Lebanon

(b)   Judicial and Arbitral Settlement

(i)   International Court of Justice


 
Statute of the International Court of Justice:  
A3– 15 judges
A4– elected by GA and SC; nominated by national groups
A16– no other involvement-
§   political/administrative functions;
§   occupation
A19– diplomatic immunity
A21– President, VP, Registrar; 3-yr. term; with re-election
A34– only States may be Parties
A36– jurisdiction: recognition of compulsory jurisdiction- declaration by
member
A39– language: French and English; except: “request” by one party for other
language
A43– written and oral proceedings
A55– majority ruling
A60– bindingness of decision: only between Parties and in that particular case
A60– no appeal

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A61– revision of judgment: discovery of some fact (newly discovered


evidence) – w/in 6 months from discovery but not more than 10 years
A62– motion to intervene allowed
A65– advisory opinions- request by a body based on UN Charter

NOTE: Reservation to acceptance of compulsory jurisdiction of ICJ (optional


clause of Art. 36(2) and (3) of ICJ statute; types: reservation relating to (a)
reciprocity and (b) time.

Case law:
1.   Jurisdiction
a.   Aerial Incidence Case
b.   Nicaragua v. U.S.
c.   Case Concerning East Timor
2.   Provisional Measures
a.   Nicaragua v. U.S.
b.   Case Concerning Legality of Use of Force
3.   Intervention
a.   El Salvador v. Honduras

(ii)   International Arbitration

Case law: (Philippines)


Del Monte v. CA (G.R. No. 136154, February 7, 2001) – The trial court found
it expedient to proceed with trial in the interest of justice instead of allowing
simultaneous arbitration proceedings. The Philippines under RA 876
authorizes arbitration of domestic disputes. It adhered to the 1958 Convention
on Recognition and Enforcement of Foreign Arbitral Awards through Senate
Resolution 71 of May 10, 1965.

LM Power v. Capitol Industrial Construction (G.R. No. 141833, March 26,


2003) – Arbitration clause does not divest courts of jurisdiction to pass upon
findings of arbitral bodies.

Frabelle Fishing Corp. v. Philamlife (G.R. No. 158560, August 17, 2007) –
To brush aside a contractual agreement calling for arbitration would be a step
backward.

Gonzalez v. Hon. Pimentel (G.R. No. 167994, January 22, 2007) – RA 876
recognizes the contractual nature of arbitration agreement.

RCBC v. Banco de Oro (687 SCRA 583) – Partiality of the Chairman of the
Arbitral Tribunal was manifested when the Chairman gave the parties copies
of the ICC Bulletin which may have equipped RCBC with legal arguments.

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Chapter VI. SPECIAL TOPICS IN INTERNATIONAL LAW

(a) The United Nations

(i) The UN Charter and the Problem of Interpretation

- Treaty drafted mainly by politicians with little assistance from lawyers


- Mixture of legal with political factors explains why States are reluctant to refer
disputes about interpretation of UN charter to ICJ
- “travaux preparatoires” as subsidiary means of interpretation
(N.B. tends to be limited to the past)

(ii) Purpose:

-   Peace and security


-   Friendly relations
- Cooperation
- Harmonize actions of States/nations

(iii) Theory of Respect for Domestic Jurisdiction of States

- Art. 2(7) – respect for internal or domestic issues


- Issues outside the domestic jurisdiction of States
1.   Breach of international law
2.   Threat to international peace
3.   Gross violation of human rights
4.   Self-determination

(iv) Membership

- Art. 4: Security Council vote for admission; recommends to General Assembly


- Charter says nothing on withdrawal
- China issue: only a question of rightful representative

(v) Organs of UN

General Assembly } “assembly”

Security Council}
ECOSOC } “council”
Trusteeship }

Secretariat }
ICJ } “organs”

(vi) Security Council:

5 permanent members – U.S., Russia, France, U.K. and China


10 non-permanent members – 5 selected each year for term of 2 years

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§   “Veto”: each permanent member with a veto on non-procedural


matters.
§   “Double veto”: to determine whether a question is by itself a
procedural question.

(vii) General Assembly:

- discusses and makes recommendations on:


1. studies on progressive development of international law
2. international cooperation
- “internal” decisions as binding on the members
- “GA resolutions” with important legal effects

(viii) Secretariat

- “Secretary-General” appointed by GA upon recommendation of SC; non-


procedural matter subject to veto; chief administrative officer
- “quota” in hiring UN personnel  

(ix) Enforcement Action and UN Forces

- Chapter VII- threats to peace, breaches of peace and acts of aggression


- 2 forms of enforcement action:
Art. 41 – non-military cut economic relations/ communications/ diplomatic
relations
Art. 42– military
(NOTE: Art. 43- State consent to join military action is necessary)

(x) Economic and Social Cooperation

- Arts. 55 and 56: standard of living and human rights


- ECOSOC members elected each year for 3-yr. term
- e.g. FAO, IMCO, ICAO, ILO, IBRD, IMF, IFAD, UNESCO, UPU, WHO

(b) International Economic Law

(i) Bretton Woods system: designed to reconstruct world economic system in


matters of trade (GATT/WTO) and finance (WB and IMF)

(ii) Core principles:


1.   comparative advantage
2.   economies of scale

(iii) Fundamental Norms:


1. most favoured nation – is an obligation to treat that State, its nationals or
goods, no less favorably than any other State, its nationals or goods

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2. national treatment – is an obligation to treat the nationals or goods of


another State as the State treats its own nationals or goods

(iv) GR: State duty to refrain from injuring others through economic acts.

(v) Safeguards and Escape Clauses: The GATT authorizes countervailing


duties on the importation of subsidized products only if the effect of
subsidization is such as to cause or threaten material injury to or to retard
materially the establishment of a domestic industry. It also permits the
antidumping duty to be in the full amount of the margin of dumping
whenever there is a sale in the importing State below “normal value.” An
escape clause in GATT allows a State party to suspend its obligation or
withdraw or modify a concession with respect to a product if, as a result of
unforeseen developments the product is being imported into its territory in
such increased quantities and under such conditions as to threaten serious
injury to domestic producers.

(vi) Generalized System of Preferences: U.S. Trade Act of 1974 authorizes a


GSP which gives the President power to designate States as eligible to
introduce eligible goods free of duty or subject to reduced goods.

(vii)Specialized Dispute Settlement Body

(viii)Free Trade Area (e.g. AFTA, NAFTA): eliminates barriers on trade among
members, but leaves each member State free to determine barriers to the
outside world.

(ix) Customs Union (e.g. EU): a grouping of States in which duties and other
restrictions are eliminated with respect to substantially all trade among
members, and substantially the same duties and other regulations are
applied by all members of the union to imports from all other States.

(c) Global Terrorism

(i) No precise definition but only “operative definition”

(ii) History of instruments:


1.   1973 International Convention for Prevention and Punishment of
terrorism – “ all criminal acts directed v. a State and intended or
calculated to create a state of terror”
2. 1972 – after the Munich Tragedy, UN initiative to prevent terrorism
3. 1963-2001– 12 multilateral treaties
a. On civil aviation (1963 Tokyo, 1970 Hague and 1971 Montreal)
b. Violence v. State leaders/officials/diplomats (1973) Convention
Preventing Crimes v. Internationally Protected Persons)
c. On taking hostages (1979)
d. On terrorist bombings (1996)
e. On financing of terrorism (1999)

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(iii) Post 9-11-01: UN Security Council Resolution 1373 acting under Chapter
VII of the UN Charter on threats to peace and on aggression established the
“Counter-Terrorism Committee”

(NOTE: Problem of distinguishing terrorism and acts of national liberation


movements.)

(iv) What is the allowable response to terrorism? (Cassese)


- Concerted and multi-lateral action (Security Council Resolution 1373)
- Elements of Proportionality Principle:
1. Detain those responsible
2. Destroy military targets
3. International humanitarian law should be respected: POW
4. Defer to Security Council authorization to use force v. specific
States
5. Bring captives to justice before the ICC.

Case law: (Philippines)


Southern Hemisphere v. ATC (G.R. No. 178552, October 5, 2010) – The
Supreme Court upheld the Human Security Act or RA 9372. Petitioners
failed to prove its invalidity based on the void for vagueness and
overbreadth doctrines. Facial challenge of a criminal statute is not
countenanced.

(d) Iraq War (Gulf War)

(i) Issue: Three UN Security Council Resolutions culminating in UNSCR


1441 allegedly laid the basis for pre-emptive strikes under the theory of
self-defense

(ii) UNSCR 678: authorized the use of force to enforce Iraq’s obligation to
disarm.

(iii) UNSCR 687: authorized use of force against Iraq to eject it from Kuwait
and to restore peace in the area.

(iv) UNSCR 1441: provided for serious consequences should Iraq fail to
comply with its duty to disarm and cooperate with the UN Inspection
team. The resolution also recognized that Iraq has continued to be in
“material breach” of past resolutions and gave it the last opportunity to
comply.

(e) International Humanitarian Law

(i) Introduction: International Law and the Use of Force


-   Theory of just war (in conformity with Divine Will) – this justified
Christianization of Roman Empire; goal- correct wrongdoing
-   Europe nation-states changed the concept on account of “sovereignty”

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Prescribed rule: attempt to negotiate and resolve disputes


Goal: maintain order by peaceful means
Norms of just war:
a.   Immunity of innocent persons
b.   Proportionate use of force
-   After the Peace of Westphalia (1648)- “just war” disapproved
Rule: States were sovereign and equal, no one State could judge whether
another’s cause was just or not.
Norm: “balance of power”
-   1st WW- ended balance of power; raised the question of unjust war
-   League of Nations- duty to submit disputes likely to lead to a rupture to
arbitration/judicial settlement/inquiry by the League; State may resort to force
after judgment
-   1928- “Kellogg-Briand Pact”- renunciation of war as instrument of national
policy
-   UN Charter- A2(4): “…refrain… from the threat or the use of force against the
territorial integrity or political independence of any State…”
(NOTE: This provision is declaratory of Customary International Law.
The term “force” rather than “war” is better to cover situations in which
violence is employed which fall short of the technical requirements of the
state of war.)
Exceptions:
1.   Collective measures by UN
2.   Self-defense

(ii) Evolution of IHL

-   Mid- 19th century: Battle of Solferino in 1859  


Henry Dunant- pioneered work
Result: Geneva Convention for the Amelioration of the Condition of
the Wounded in the Field (1864) (amended in 1906)
1806- Declaration of St. Petersburg prohibited use of small explosive or incendiary
projectiles
-   Codification: Hague Peace Conferences of 1899 and 1907
Included:
a.   land and naval warfare
b.   “belligerents” subject to law of nations
c.   measures over occupied territory
d.   rights and duties of neutral states
e.   prohibition on arms, projectiles or material calculated to cause
unnecessary suffering
(NOTE: Apart from 1954 Hague Convention for Protection of Cultural
Property in Time of Armed Conflict, rules of war remained codified
in1907.)
-   1929 Conventions: revised 1864 and 1906 instruments and dealt with rules
concerning the wounded and sick in armies in the field and POWs
-   replaced by Four Geneva “Red Cross” Conventions of 1949
>Included:
1.   amelioration of the condition of the wounded and sick in armed forces
in the field

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2.   amelioration of the condition of the wounded, sick and ship-wrecked


members of the armed forces at sea
3.   POWs’ treatment
4.   protection of civilians

>Basic Principle: persons not actively in warfare should be treated humanely.


Therefore, it prohibits:
–   Taking of hostages
–   Torture
–   Illegal executions
–   Reprisals

>Other Principles:
1.   Standard of care of POWs
2.   Prohibition on deportation
3.   Prohibition on indiscriminate distribution of property

-   1977 Additional Protocols: built upon earlier conventions


- Contributions:
1.   Law of Hague- interstate rules on use of force
2.   Law of Geneva- protection of persons
3.   Wars of liberation
4.   Mercenaries (prohibited by Declaration on Friendly Relations)
5.   Apartheid

(iii) Scope of Protection of Combatants and Non-combatants

-   GC 1- respect and protection to medical personnel and establishment


-   GC 2- (at sea): hospital ships
-   GC 3- POWs
Definition of POWs:
-   Members of Armed Force (including militias and volunteer corps)
-   Other militias and volunteer corps (including organized resistance movement)
Tests:
1.   Commanded by person responsible for subordinates
2.   Use of fixed distinctive sign
3.   Carry arms openly
4.   Operates in laws/ customs of war

NOTE: “use of guerillas”- since 1949; subject to expanded definition in


A43 and A 44 of P1, 1977 (expanded definition, controversial)

Armed Forces consist of “all organized armed units under an effective


command structure which enforces compliance with international law”.

A44(3) duty- to distinguish themselves from the civilian population while


in operation… when an armed combatant cannot so distinguish himself,
the status of combatant may be retained provided that arms are carried
openly during engagement.

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-   Treatment of POWS:
1.   No violence, intimidation, insults and public curiosity e.g Breach-
display POWs on TV confessing and criticizing governments (Iraq)
2.   Information allowed - name, date of birth, serial number… but one
cannot use coercion to get information
3.   Put in camps (away from combat zones)
4.   A23- cannot use presence of POWs to render certain points immune
from military operations
5.   POWs subject to laws of the State holding them
6.   May be disciplined and prosecuted for war crimes
7.   May be prosecuted for crimes against the holding State

- GC4- in relation to A50(1) of P1, 1977


-   Definition: Civilian- “any person not combatant and in cases of doubt, a
person is to be considered as a civilian”.
-   Scope of Protection: person, honor, convictions, religious practice
-   Prohibition: torture, other cruel, inhuman, or degrading treatment, hostage-
taking, reprisal
-   Guarantee: due process
-   Civilians in occupied territory: e.g. Kuwait- sec. 3, GC4
-   Case: West Bank of Jordan

- During hostilities:
A48, 81, P1– distinguish: population and combatants; civilian and military;
objectives
A51– civilians cannot be object of attack
- prohibits acts or threats to violence or to spread terror
- no indiscriminate attack
A52– civilian objects shall not be object of attack
A53 and 1954 Convention on Cultural Property – cultural property and places
of worships, protected.
A54 – objects indispensable for survival of civilians (e.g. foodstuffs,
agricultural areas, livestock, water supplies, irrigation…)
A56 – installations containing dangerous forces (e.g. dams, dykes, nuclear
generating stations…)

(iv) Methods of Warfare

– 1868 Petersburg Declaration- Preamble


“the only legitimate object which states should endeavor to accomplish during war is
to weaken the military forces of the enemy.”

–   International law imposes constraint on the use of methods of warfare


Case: “Legality of the Threat of Use of Nuclear Weapons” (ICJ, 1996)- never use
weapons that :
1.   are incapable of distinguishing between civilian and military targets…
2.   cause unnecessary suffering to combatants…
3.   cause (combatants) such harm or (aggravates) suffering.

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Held: CIL (no need to be party to Hague Peace Conference or GC)- “overriding
consideration of humanity”
Note: On legality of possession or threat or use of nuclear weapons- not prohibited
(for self-defense) [see Nuclear Weapons Non-proliferation Treaty]

–   Disallowed weapons:
1.   projectiles (St. Petersburg, 1868)
2.   dum-dum bullets (Hague, 1899)
3.   asphyxiating and deleterious gases (Hague, 1899) (Gen. Prot., 1925)
4.   not detectible by x-ray (1980 Conventional Weapons Treaty, Prot. 1)
5.   mines and booby- traps v. civilians (PII of 1980 CWT)
6.   incendiary devices v. civilians or military objectives (P III of 1980 CWT)

Note: protect the environment from long-term and severe damage: A55, P1, GC; 1977
Convention on Prohibition of Military or any other Hostile Use of Environmental
Modification Techniques

(v) Scope of Application: International and Internal Armed Conflicts

Case: Tadic case- ITWCFY


–   “ An armed conflict exists whenever there is resort to armed force between States or
protracted armed violence between governmental authorities and organized armed
groups or between such groups within a State.”
–   Therefore, A3 of the ITWCFY Statute gave jurisdiction “regardless of whether they
occurred within an internal or an international armed conflict.”
–   Non International Armed Conflict - Common A3 of 1949 GC and P II, 1977
Note: may range from full-scale civil wars to minor disturbances…
–   Protection accorded:
1.   Persons taking no active part in hostilities to be treated humanely without any
adverse distinction based on race, color, religion or faith, sex, birth or wealth.
-­   Prohibited acts:
a.   Violence to life and person
b.   Hostage-taking
c.   Outrages upon human dignity
d.   Passing of sentences and carrying out of executions in the
absence of due process
2.   Wounded and sick are to be cared for
–   P II, 1977
-­   “armed forces” v. “dissident forces”
Test:
a.   Responsible command
b.   Exercise such control over part of territory
c.   Able to carry out sustained and concerted military operations
d.   Able to implement P II
-­   Excluded:
a.   Internal disturbances
b.   Tensions
c.   Riots
d.   Sporadic acts of violence
-­   Specific rights:

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a.   Protection v. violence to life, health


b.   Protection v. torture, collective punishment, hostage-taking,
terrorism
c.   Protection v. outrage upon personal dignity, rapes and
prostitution, pillage
d.   Protection of children, civilians
e.   Protection of works/installations which may cause severe losses
f.   Protection of displaced civilians
g.   Protection of prisoners/detainees
h.   Protection of wounded/sick

-­   “outside” threshold of A3 and P II


a.   Internal strife- being addressed by ICRC (gray area: HR and
IHL)

(vi) Enforcement of IHL

–   Use of “Protecting Power”: Switzerland; to look after nationals of one State in the control
of one of conflicting parties
–   International Fact- Finding (PI):–grave breaches of GC
–   Ad Hoc Inquiry (both parties)
–   War crimes: subject to universal jurisdiction (e.g. Nuremberg Charter, A6- individual
responsibility for violations, etc…)

–   Martens Clause- Russian delegate (Hague)


1.   “unforeseen cases should, in the absence of a written undertaking, not to be left to
the arbitrary judgment of military commanders…”
2.   “civilians and combatants remain under the protection… of the principles of the
law of nations.”

(f) The Rome Statute (ICC) and R.A. No. 9851 “Philippine Act on Crimes Against
International Humanitarian Law, Genocide, and Other Crimes Against Humanity”

Part 1.Establishment of the Court

The Court (Article 1)


§   Complementary to national criminal jurisdictions

Relationship of the Court with the United Nations (Article 2)


§   An agreement approved by the Assembly of States Parties

Seat of the Court (Article 3)


§   The Hague
§   May sit elsewhere, whenever it considers it desirable

Legal Status and Powers of the Court (Article 4)


§   International legal personality
§   May exercise its functions and powers on the territory of any State and, by special
agreement; on the territory of any other State

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Crimes within the Jurisdiction of the Court (Article 5)


§   The crime of genocide;
§   Crimes against humanity;
§   War crimes;
§   The crime of aggression.

Genocide (Article 6)
§   Any of the following acts committed with intent to destroy, in whole or in part, a
national, ethnic, racial or religious group, as such:
(a)   Killing members of the group;
(b)  Causing serious bodily or mental harm to members of the group;
(c)   Deliberately inflicting on the group conditions of life calculated to bring about
its physical destruction in whole or in part;
(d)  Imposing measures intended to prevent births within the group;
(e)   Forcibly transferring children of the group to another group.

Crimes Against Humanity (Article 7)


§   Any of the following acts when committed as part of a widespread or systematic
attack directed against any civilian population, with knowledge of the attack:
(a)   Murder;
(b)  Extermination;
(c)   Enslavement;
(d)  Deportation or forcible transfer of population;
(e)   Imprisonment or other severe deprivation of physical liberty in violation of
fundamental rules of international law;
(f)   Torture;
(g)  Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced
sterilization, or any other form of sexual violence of comparable gravity;
(h)  Persecution against any identifiable group or collectivity;
(i)   Enforced disappearance of persons;
(j)   The crime of apartheid;
(k)  Other inhumane acts.

War Crimes (Article 8)


§   Part of a plan or policy or as a part of a large-scale commission of such crimes.

(a)   Grave breaches of the Geneva Conventions of 12 August 1949


(i)   Willful killing;
(ii)   Torture;
(iii)   Willfully causing causing great suffering, or serious injury to body or
health;
(iv)   Extensive destruction and appropriation of property, not justified by
military necessity;
(v)   Compelling a prisoner to serve in the forces of a hostile Power;
(vi)   Depriving a prisoner of the rights of fair and regular trial;
(vii)   Unlawful deportation or unlawful confinement;
(viii)   Taking of hostages.

(b) Other serious violations of the laws and customs applicable in international
armed conflict:

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(i)   Attacks against the civilian population;


(ii)   Attacks against civilian objects;
(iii)   Attacks against personnel, installations, material, units or vehicles
involved in a humanitarian assistance or peacekeeping;
(iv)   Attack in the knowledge that such attack will cause incidental loss of
life or injury and severe damage to the natural environment;
(v)   Attacking towns, villages, dwellings or buildings which are
undefended;
(vi)   Killing or wounding a combatant having laid down his arms;
(vii)   Improper use of a flag of truce, of the flag or of the military insignia
and uniform of the enemy or of the United Nations, as well as of the
distinctive emblems of the Geneva Conventions;
(viii)   Transfer by the Occupying Power of parts of its own civilian
population into the territory it occupies, or the deportation or transfer
of all parts of the population of the occupied territory within or outside
this territory;
(ix)   Attacks against buildings dedicated to religion, education, art, science
or charitable purposes, historic monuments, hospitals and places where
the sick and wounded are collected;
(x)   Physical mutilation;
(xi)   Killing or wounding treacherously individual belonging to the hostile
nation or army;
(xii)   Declaring that no quarter will be given;
(xiii)   Destroying or seizing the enemy’s property;
(xiv)   Declaring abolished the rights and actions of the nationals of the
hostile party;
(xv)   Compelling the nationals of the hostile party to take part in the
operations of war directed against their own country;
(xvi)   Pillaging a town or place;
(xvii)   Employing poison;
(xix)   Employing bullets which expand or flatten;
(xx)   Employing weapons which are of a nature to cause superfluous injury
provided that such weapons are the subject of a comprehensive
prohibition;
(xxi)   Outrages upon personal dignity;
(xxii)   Committing rape or any other form of sexual violence;
(xxiii)   Utilizing the presence of a civilian to render certain points immune
from military operations;
(xxiv)   Attacks against buildings, material, medical units and transport, and
personnel using the distinctive emblems of the Geneva Conventions;
(xxv)   Using starvation of civilians as a method of warfare ;
(xxvi)   Enlisting children under the age of 15

(c) In the case of an armed conflict not of an international character, serious


violations of article 3 common to the four Geneva Conventions of 12 August
1949:
(i)   Violence to life and person;
(ii)   Outrages upon personal dignity;
(iii)   Taking of hostages;

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(iv)   Passing of sentences and the carrying out of executions without


previous judgement.

(d) Does not apply to situations of internal disturbances;


(e) Other serious violations of the laws and customs applicable in armed conflicts
not of an international character;
(f) Paragraph 2(e) applies to armed conflicts not of an international character when
there is protracted armed conflict between governmental authorities and
organized armed groups or between such groups.

Jurisdiction ration as is temporis (Article 11)


§   Crimes committed after the entry into force of this Statute.
§   If a State becomes a Party to this Statute after its entry into force, jurisdiction only
with respect to crimes committed after the entry into force of this Statute for that
State, unless that State has made a declaration under article 12, paragraph 3.

Preconditions to the exercise of jurisdiction (Article 12)


§   In the case of article 13, par. (a) or (c), the Court may exercise its jurisdiction if one or
more of the following States are Parties to this Statute or have accepted the
jurisdiction of the Court in accordance with paragraph 3;
(a)   The State on the territory of which the conduct in question occurred or, if the
crime was committed on board a vessel or aircraft, the State of registration of
that vessel or aircraft;
(b)   The State of which the person accused of the crime is a national.

§   If the acceptance of a State which is not a Party to this Statute is required under
paragraph 2, that State may, by declaration lodged with the Registrar, accept the
exercise of jurisdiction by the Court with respect to the crime in question.

Exercise of jurisdiction (Article 13)


§   Referred to the Prosecutor by a State Party;
§   Referred to the Prosecutor by the Security Council acting under Chapter VII of the
Charter of the United Nations; or
§   The Prosecutor has initiated an investigation in respect of such crime

§   Referral of a situation by a State Party (Article 14)


§   Requesting the Prosecutor to investigate the situation.

Prosecutor (Article 15)


§   Prosecutor may initiate investigations motu proprio.
§   He or she shall submit to the Pre-Trial Chamber a request for authorization of an
investigation.
§   Refusal of the Pre-Trial Chamber to authorize the investigation shall not preclude the
presentation of a subsequent request by the Prosecutor based on new facts or
evidence.

Deferral of investigation or prosecution (Article 16)


§   For a period of 12 months after the Security Council, in a resolution adopted under
Chapter VII of the Charter of the United Nations.

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Issues of admissibility (Article 17)


§   A case is inadmissible where:
(a)   being investigated or prosecuted by a State
(b)   the State has decided not to prosecute the person concerned
(c)   tried for conduct

§   In order to determine unwillingness in a particular case


(a)   shielding the person
(b)   unjustified delay
(c)   not being conducted independently or impartially

§   In order to determine inability in a particular case, a total or substantial collapse or


unavailability of its national judicial system
Preliminary rulings regarding admissibility (Article 18)
§   The prosecutor shall notify all States Parties
§   Within one month of receipt of that notification, a State may inform the Court that it
is investigating or has investigated its nationals or others within its jurisdiction

§   Challenges to the jurisdiction of the Court or the admissibility of a case (Article 19)
§   The Court may, on its own motion, determine the admissibility of a case.
§   Challenges to the admissibility of a case may be made by:
(a)   An accused or a person for whom a warrant of arrest or a summons to appear
has been issued under article 58;
(b)   A State which has jurisdiction over a case, on the ground that it is investigating
or prosecuting the case or has investigated or prosecuted or;
(c)   A State from which acceptance of jurisdiction is required under article 12.

§   Admissibility of a case or the jurisdiction of the Court may be challenged only once
by any person or State referred to in paragraph 2. Challenge shall take place prior to
or at the commencement of the trial. Challenges to the admissibility of a case, at the
commencement of a trial, or subsequently with leave of the Court, may be based only
on article 17, paragraph 1(c).
§   If the Court has decided that a case is inadmissible under article 17, the Prosecutor
may submit a request for a review of the decision.

Ne bis in diem (Article 20)


§   No person shall be tried before the Court with respect to conduct which formed the
basis of crimes for which the person has been convicted or acquitted by the Court.
§   Unless the proceedings in the other court:
(a)   Were for the purpose of shielding the person;
(b)   Otherwise were not conducted independently or impartially in accordance with
the norms of due process recognized by international law.

Applicable law (Article 21)


§   In the first place, this Statute, Elements of Crimes and its Rules of Procedure and
Evidence;
§   In the second place, applicable treaties and the principles and rules of international
law, including the established principles of the international law of armed conflict;
§   Failing that, general principles of law, the national laws of States that would normally
exercise jurisdiction over the crime;

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§   Principles and rules of law as interpreted in its previous decisions.

Part 3.General Principles of Criminal Law

Nullum crimen sine lege (Article 22)


§   Conduct in question constitutes, at the time it takes place, a crime within the
jurisdiction of the Court.

Nulla poena sine lege (Article 23)


§   Punished only in accordance with this Statute.

Non-retroactivity ratione personae (Article 24)


§   Prior to the entry into force of the Statute.

Individual criminal responsibility (Article 25)


§   Natural persons;
§   Individually responsible;
§   A person shall be criminally responsible and liable for punishment for a crime if that
person:
(a)   Commits such a crime, whether as an individual, jointly with another or through
another person, regardless of whether that other person is criminally responsible;
(b)   Orders, solicits or induces the commission of such a crime which in fact occurs
or is attempted;
(c)   For the purpose of facilitating the commission of such a crime, aids, abets or
otherwise assists in its commission or its attempted commission, including
providing the means for its commission;
(d)   In any other way contributes to the commission or attempted commission of
such a crime by a group of persons acting with a common purpose;
(e)   In respect of the crime of genocide, directly and publicly incites others to
commit genocide;
(f)   Attempts to commit such a crime by taking action that commences its execution
by means of a substantial step, but the crime does not occur because of
circumstances independent of the person’s intentions.

§   Responsibility of States under international law.

Exclusion of jurisdiction over persons under eighteen (Article 26)

Irrelevance of official capacity (Article 27)


§   Statute shall apply equally to all persons without any distinction based on official
capacity. In particular, official capacity as a Head of State or Government, a member
of a Government or parliament, an elected representative or a government official
shall in no case exempt a person from criminal responsibility under this Statute, nor
shall it, in and of itself, constitute a ground for reduction of sentence.
§   Immunities or special procedural rules which may attach to the official capacity of a
person, whether under national or international law, shall not bar the Court from
executing its jurisdiction over such a person.

Responsibility of commanders and other superiors (Article 28)

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§   Military commander or person


(i)   Either knew or owing to the circumstances at the time, should have known that
the forces were committing or about to commit such crimes;
(ii)   Failed to take all necessary and reasonable measures within his or her power to
prevent or repress their commission or to submit the matter to the competent
authorities for investigation and prosecution.

§   Superior and subordinate relationships


(i)   Superior either knew or consciously disregarded information which clearly
indicated, that the subordinates were committing or about to commit such
crimes;
(ii)   Crimes concerned activities that were within the effective responsibility and
control of the superior;
(iii)   Superior failed to take all necessary and reasonable measures within his or her
power to prevent or repress their commission or to submit the matter to the
competent authorities for investigation and prosecution.

Non-applicability of statute of limitations (Article 29)


§   Shall not be subject to any statute of limitations.

Mental element (Article 30)


§   A person has intent
(a)   In relation to conduct, that person means to engage;
(b)   In relation to a consequence, that person means to cause that consequence;

Grounds for excluding criminal responsibility (Article 31)


§   Mental disease or defect;
§   State of intoxication;
§   Acts reasonably to defend himself or herself or another person or, in the case of war
crimes, property which is essential for the survival of the person or another person or
property which is essential for accomplishing a military mission, against an imminent
and unlawful use of force in a manner proportionate to the degree of danger to the
person or the other person or property protected;
§   Caused by duress.

Mistake of fact or mistake of law (Article 32)


§   Mistake of fact- ground for excluding criminal responsibility only if it negates the
mental element.
§   Mistake of law- not a ground for excluding criminal responsibility. May be a ground
for excluding criminal responsibility if it negates the mental element required by such
a crime or as provided for in article 33.

Superior orders and prescription of law (Article 33)


§   Person was under a legal obligation to obey orders.
§   Person did not know that the order was unlawful.
§   Order was not manifestly unlawful.
§   Orders to commit genocide or crimes against humanity are manifestly unlawful.

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Part 4.Composition and Administration of the Court

Organs of the Court (Article 34)


§   Presidency
§   Appeals Division, Trial Division and Pre-Trial Division
§   Prosecutor
§   Registry

Service of Judges (Article 35)


§   Full-time members

Qualifications, nomination and election of judges (Article 36)


§   18 judges
§   Presidency may propose an increase
§   Nominations made by any State Party
§   Candidate need not necessarily be a national of that State Party
§   Elected by secret ballot at a meeting of the Assembly of States Parties
§   Term of nine years shall not be eligible for re-election

Judicial vacancies (Article 37)


§   Serve for the remainder of the predecessor’s term

The Presidency (Article 38)


§   President and the First and Second Vice-Presidents

Chambers (Article 39)


§   Divisions
-   Appeals Division
-   Trial Division
-   Pre-Trial Division

Independence of the judges (Article 40)


§   Shall not engage in any other occupation of a professional nature.

Excusing and disqualification of judges (Article 41)


§   In which his or her impartiality might reasonably be doubted.

The Office of the Prosecutor (Article 42)


§   A separate organ
§   Deputy Prosecutors full time basis

The Registry (Article 43)


§   Non-judicial aspects
§   Judges elect the Registrar
§   Term of five years

Removal from office (Article 46)


§   Serious misconduct or a serious breach of duties.
§   Unable to exercise the functions.
§   Made by the Assembly of States Parties.

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Privileges and immunities (Article 48)


§   Same privileges and immunities as are accorded to heads of diplomatic missions and
after the expiry of their terms of office.

Official and working languages (Article 50)


§   Official languages
-   Arabic
-   Chinese
-   English
-   French
-   Russian
-   Spanish
§   Working languages
-   English
-   French

Rules of Procedure and Evidence (Article 51)


§   Conflict between the Statute and the Rules, the Statute shall prevail.

Part 5. Investigation and Prosecution

Initiation of an investigation (Article 53)


§   Prosecutor may reconsider a decision based on new facts or information.

Duties and powers of the Prosecutor with respect to investigation (Article 54)
§   Prosecutor may conduct investigations on the territory of a state.

Rights of persons during an investigation (Article 55)


§   Not be compelled to incriminate himself or herself.
§   Not be subjected to coercion, duress or threat, torture or cruel, inhuman or degrading
treatment or punishment.
§   Assistance of a competent interpreter.
§   Not be subjected to arbitrary arrest or detention.
§   Informed, prior to being questioned that there are grounds to believe that he or she has
committed a crime.
§   Remain silent.
§   Legal assistance.
§   Questioned in the presence of counsel.

Role of the Pre-Trial Chamber in relation to a unique investigative opportunity (Article 56)
§   Take testimony which may not be available subsequently for the purpose of a trial.

Functions and powers of the Pre-Trial Chamber (Article 57)


§   Protection and privacy of victims and witnesses, preservation of evidence, protection
of persons who have been arrested.
§   Seek the cooperation of States to take protective measures for the purpose of
forfeiture.

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Arrest proceedings in the custodial State (Article 59)


§   Before the competent judicial authority in the custodial State.
§   Right to apply for interim release pending surrender.
§   Pre-Trial Chamber shall be notified of any request for interim release.

Initial proceedings before the Court (Article 60)


§   Pre-Trial Chamber shall satisfy itself that the person has been informed of the crimes.

Confirmation of the charges before trial (Article 61)


§   Pre-Trial Chamber shall hold a hearing to confirm the charges on which the
Prosecutor intends to seek trial;
§   Hearing in the absence of the person charged;
§   Waived right;
§   Fled or cannot be found;
§   Determine whether there is sufficient evidence to establish substantial grounds to
believe that the person committed each of the crimes charged;
§   Once the charges have been confirmed the Presidency shall constitute a Trial
Chamber.

Part 6. The Trial

Place of trial (Article 62)


§   The seat of the Court.

Trial in the presence of the accused (Article 63)

Functions and powers of the Trial Chamber (Article 64)


§   Fair and expeditious;
§   Production of evidence;
§   Protection of the accused, witnesses and victims;  
§   Public;
§   Read to the accused the charges;
§   Rule on the admissibility or relevance of evidence.

Proceedings on an admission of guilt (Article 65)


§   Consider the admission of guilt, together with any additional evidence.

Presumption of innocence (Article 66)


§   Beyond reasonable doubt.

Rights of the accused (Article 67)


§   Public hearing;
§   To be informed of the nature, cause and content of the charge;
§   To be present at the trial;
§   To examine witnesses;
§   Assistance of a competent interpreter;
§   Not to be compelled to testify or to confess guilt and to remain silent;
§   To make an unsworn oral or written statement.

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Article 68
§   Protection of the victims and witnesses;
§   Proceedings in camera.

Evidence (Article 69)


§   Oral or recorded testimony.  

Offences against the administration of justice (Article 70)


§   Giving false testimony;
§   Corruptly influencing a witness;
§   Corruptly influencing an official of the Court;
§   Imprisonment not exceeding five years;

Sanctions for misconduct before the Court (Article 71)

Protection of national security information (Article 72)

Third-party information or documents (Article 73)


§   Consent of the originator to disclose.  

Requirements for the decision (Article 74)


§   Deliberations remain secret;
§   Decision shall be in writing.

Reparations for victims (Article 75)

Sentencing (Article 76)


§   Pronounced in public, in the presence of the accused.

Part 7. Penalties

Applicable penalties (Article 77)


§   Maximum of 30 years;
§   Life imprisonment when justified by the extreme gravity;
§   Forfeiture.

Determination of the sentence (Article 78)


§   Deduct the time spent in detention.

Trust Fund (Article 79)


§   Benefit of victims of crimes.

Non-prejudice to national application of penalties and national law (Article 80)

Part 8. Appeal and Revision

Appeal against decision of acquittal or conviction or against sentence (Article 81)


§   Prosecutor may make an appeal:
§   Procedural error;
§   Error of fact;

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§   Error of law.
§   Convicted person, or the Prosecutor on that person’s behalf, may make an appeal:
§   Procedural error;
§   Error of fact;
§   Error of law.
§   Ground that affects the fairness or reliability of the proceedings.

Appeal against other decisions (Article 82)

Proceedings on appeal (Article 83)

Revision of conviction or sentence (Article 84)


§   New evidence;
§   Decisive evidence was false;
§   One or more of the judges has committed act of serious misconduct.

Compensation to an arrested or convicted person (Article 85)


§   Unlawful arrest;
§   Reversed conviction;
§   Manifest miscarriage of justice.

Part 9. International Cooperation and Judicial Assistance

Requests for cooperation: general provisions (Article 87)


§   Diplomatic channel or any other;
§   International Criminal Police Organization or any appropriate regional organization;
§   Protection of information;
§   Where a State Party fails to comply with a request to cooperate, refer the matter to the
Assembly of States Parties or to the Security Council.

Availability of procedures under national law (Article 88)

Surrender of persons to the Court (Article 89)


§   Request for the arrest and surrender of a person to any State on the territory of which
that person may be found;
§   If the person sought is being proceeded against or is serving a sentence in the
requested State for a crime different from that for which surrender to the Court is
sought, consult with the Court.

Competing requests (Article 90)


§   Request from the Court for the surrender of a person, also receives request from any
other State for the extradition of the same person for the same conduct;
§   Notify the Court.

Contents of request for arrest and surrender (Article 91)


§   In writing. In urgent cases, any medium capable of delivering a written record;
§   Issued by the Pre-Trial Chamber supported by:
§   Describing the person;
§   Copy of the warrant of arrest;

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§   Documents necessary to meet the requirements for the surrender, if possible,


should be less burdensome.

Provisional Arrest (Article 92)


§   In urgent cases, pending presentation of the request for surrender.

Other forms of cooperation (Article 93)


§   Identification and whereabouts of persons;
§   Taking of evidence;
§   Questioning of any person;
§   Service of documents;
§   Facilitating the voluntary appearance;
§   Temporary transfer of persons;
§   Examination of places;
§   Execution of searches and seizures;
§   Provision of records and documents;
§   Protection of victims and witnesses;
§   Freezing or seizure of proceeds, property and assets for the purpose of eventual
forfeiture;
§   State Party may deny a request which relates to its national security;
§   Request the temporary transfer of a person in custody for purposes of identification.

Postponement of execution of a request in respect of ongoing investigation or prosecution


(Article 94)
§   Postponement shall be no longer than is necessary to complete the relevant
investigation or prosecution.

Postponement of execution of a request in respect of an admissibility challenge (Article 95)

Contents of request for other forms of assistance under article 93 (Article 96)
§   In writing. In urgent cases, any medium capable of delivering a written record.

Consultations (Article 97)


§   Problems may include:
§   Insufficient information to execute the request;
§   Person sought cannot be located. The person in the requested State is clearly
not the person named in the warrant;
§   Execution of the request would require the requested State to breach a pre-
existing treaty obligation.

Cooperation with respect to waiver of immunity and consent to surrender (Article 98)
§   Court may not proceed with a request for surrender or assistance which would require
the requested State to act inconsistently with its obligations under international law
with respect to the State or diplomatic immunity of a person or property of a third
State, unless the Court can first obtain the cooperation of that third State for the
waiver of the immunity.

Execution of requests under article 93 and 96 (Article 99)


§   In accordance with the relevant procedure under the law of the requested State;

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§   Where it is necessary for the successful execution of a request which can be executed
without any compulsory measures, the Prosecutor may execute such request directly
on the territory of a State.

Costs (Article 100)


§   Ordinary costs for execution of requests in the territory of the requested State shall be
borne by that State.

Rule of speciality (Article 101)


§   Person surrendered shall not be proceeded against for any conduct committed prior to
surrender.

Use of terms (Article 102)

Part 10. Enforcement

Role of States in enforcement of sentences of imprisonment (Article 103)


§   Served in a State designated by the Court from a list of States which have indicated to
the Court their willingness to accept sentenced persons.

Change in designation of State of enforcement (Article 104)


§   Sentenced person may apply to the Court to be transferred.

Enforcement of the sentence (Article 105)


§   Sentence of imprisonment shall be binding on the States Parties.

Supervision of enforcement of sentences and conditions of imprisonment (Article 106)


§   Consistent with widely accepted international treaty standards.

Transfer of the person upon completion of sentence (Article 107)


§   Approved by the Court.

Limitation on the prosecution or punishment of other offences (Article 108)

Enforcement of fines and forfeiture measures (Article 109)


§   Property, or the proceeds of the sale of real property shall be transferred to the Court.

Review by the Court concerning reduction of sentence (Article 110)


§   Served two thirds of the sentence, or 25 years in the case of life imprisonment.

Escape (Article 111)

Part 11. Assembly of State Parties

Assembly of State Parties (Article 112)


§   One representative may be accompanied by alternates and advisers.
§   Bureau: President, two Vice-Presidents and 18 members elected by the Assembly for
three-year terms.

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Part 12. Financing

Financial Regulations (Article 113)

Payment of expenses (Article 114)

Funds of the Court and of the Assembly of States Parties (Article 115)
§   Assessed contribution;
§   Funds provided by the United Nations.

Voluntary contributions (Article 116)

Assessment of contributions (Article 117)

Annual audit (Article 18)  

Part 13. Final Clauses

Settlement of disputes (Article 119)


§   Decision of the Court;
§   Any other dispute between two or more Sates Parties referred to the Assembly of
States Parties. Assembly may itself seek to settle or may make referral to the
International Court of Justice.

Reservations (Article 120)


§   No reservations.

Amendments (Article 121)


§   Expiry of seven years, submitted to the Secretary-General of the United Nations;

Amendments to provisions of an institutional nature (Article 122)

Review of the Statute (Article 123)

Transitional Provision (Article 124)


§   May declare that, for a period of seven years after the entry into force of this Statute
for the State concerned, it does not accept the jurisdiction of the Court with respect to
the category of crimes referred to in article 8 when a crime is alleged to have been
committed by its nationals or on its territory.

Signature, ratification, acceptance, approval or accession (Article 125)

Entry into force (Article 126)

Withdrawal (Article 127)

Authentic texts (Article 128)

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Case Study
Application of International Criminal Law to Philippine Municipal Law: R.A. 9851-
Issues and Concerns

Preliminary Considerations
§   Chapter I: Declaration of Principles
1. Doctrine of Incorporation – generally accepted principles of I.L. (par. a)
2. Adoption of IHL (par. d)
3. Fair Trial – follow international standards (par. f)
4. No implied recognition of belligerency – shall not affect legal status of the parties
to a conflict (par. g)

§   Chapter II – Definition
1. Armed Conflict (par. c)
§   State v. State (International Character)
§   Protracted Armed Violence: Government v. Organized Armed Groups (Non-
International)
§   Armed Groups v. Armed Groups (Non-International)
(NPA v. MILF)
(MILF v. ASG)
2. Standards of Armed Forces (par. d)
a. Responsible Command
b. Disciplinary System
c. Compliance with IHL
3. Enforced or Involuntary Disappearance
§   State or political organization (Non-State Actor)
Note: Only instance NSA mentioned (?)
4. Forced pregnancy
§   To affect ethnic composition (Africa, Bosnia)
5. Perfidy (par. j)
§   Betrayal of confidence of an adversary
6. Protected Person (par. q)
§   Stateless or Refugee

§   Chapter III: Crimes Against International Humanitarian Law, Genocide and Other
Crimes Against Humanity
1. War Crimes – Four (4) Geneva Conventions and Protocols
a. International Armed Conflict
§   Willful killing
§   Torture
§   Wanton destruction of property (outside military necessity)
§   Unfair trial of POW
§   Arbitrary deportation
§   Hostage-taking
§   Forced military service
§   Unjustifiable delay in repatriation of prisoners
b. Non-International Armed Conflict
§   Common A3 of Geneva Conventions violations – willful killing, torture,
outrages upon personal dignity, hostage-taking, no judicial process
c. Other serious violations of customs applicable in armed conflict

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§   Guide to type of violations:


1.   Attacks vs. non-combatants, peace-keeping missions
2.   Attacks vs. non-military targets
3.   Severe damage to environment
4.   Improper use of flag of truce, enemy uniform, protective signs
5.   Physical mutilation or scientific experimentation of subject persons
6.   Perfidy
7.   Displacement of civilian population
8.   Torture, humiliation
9.   Sexual violence
10.   Inhumane methods of warfare
2. Genocide – destroy a stable group (national, ethnic, racial, religious or social)
3. Other Crimes Against Humanity – widespread or systematic attack v. civilian
population

§   Chapter IV – Penal Provisions

§   Reclusion temporal – acts under Secs. 4-6


§   Reclusion perpetua – extreme gravity (e.g., with death, rape)
§   Prision mayor – inciting to commit genocide

§   Chapter V: Some Principles of Criminal Liability


1. Individual Criminal Responsibilities (principal, accomplice, attempt to commit)
2. Irrelevance of Official Capacity
GR – no immunity
Except: (a) President (Constitution)
(b) Diplomatic (Treaty)
3. Responsibility of Superiors
(a) Actual or presumed knowledge; and
(b) Failure to address, investigate or prosecute
4. Imprescriptibility
5. Orders from a Superior
Note: Exculpatory if
(a) Under legal obligation to obey
(b) Lack of knowledge of unlawfulness of order
(c) Order not manifestly unlawful
Note: “manifestly unlawful” – genocide, crimes v. humanity

§   Chapter VI: Protection of Victims and Witnesses


1. Protection of Victims and Witnesses
§   Gender and Child Sensitivity
§   Exception to public trial
§   in camera
§   electronic evidence presentation
§   Limit on access to information
2. Reparations to Victims
§   Restitution, compensation, rehabilitation

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§   Chapter VII: Applicability of International Law and Other Laws


1. Applicability of International Law
(a) The 1948 Genocide Convention;
(b) The 1949 Geneva Conventions I-IV, their 1977 Additional Protocols I and II
and their 2005 Additional Protocol III;
(c) The 1954 Hague Convention for the Protection of Cultural Property in the
Event of Armed Conflict, its First Protocol and its 1999 Second Protocol;
(d) The 1989 Convention on the Rights of the Child and its 2000 Optional
Protocol on the Involvement of Children in Armed Conflict;
2. Suppletory Application of the Revised Penal Code and Other General or Special
Laws

§   Chapter VIII: Jurisdiction


1. Jurisdiction – “universal jurisdiction”
(a) The accused is a Filipino citizen;
(b) The accused, regardless of citizenship or residence, is present in the
Philippines; or
(c) The accused has committed the said crime against a Filipino citizen.
Note:
§   Deferrence to another court outside R.P.
§   Double jeopardy
§   RTC – designated special courts

(g)  Overview of Fundamental Principles on International Environmental Justice

I.   Introduction: Scope of Inquiry

A. Concept of Environment
§   Basic Elements of the Earth: air, land and water
§   All living elements of the earth as well as natural resources
§   Holistic: place of humans in the environment

B. Theory of Environmental Justice


§   Lazarus – “Environmental Justice focuses on the distribution of environmental
hazards across society and seeks a fair distribution of those hazards x x x”
§   Hofrichter’s – “x x x equal access to natural resources and the rights to clean
air and water, adequate health care, affordable shelter, and a safe workplace x
x x.”

II.   Preliminary Considerations

A. Environmental Protection v. Development


1. Brundtland Commission (1987): “Sustainable Development”
§  integrates environmental and developmental aspirations at all levels of
decision-making.
§  “development that meets the needs of the present without compromising the
ability of future generations to meet their own needs.”

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B. Legal Characterization of Environmental Protection Principles


1. Challenging Traditional Legal Systems (not indigenous law) as “impediments”
(i) concept of right and duty bearers: only the living
(ii) only human beings as possessed with rights
(iii) absolute freedom of contract
(iv) absolute ownership

2. Shifting Notion of State Sovereignty: From individualist to socially oriented –


“pollution does not recognize the doctrine of state sovereignty as it proceeds
beyond state boundaries”

III.   Development of Normative Standards in Environmental Protection

A.   Stockholm Declaration (1972)

Principle 1 – “fundamental right to x x x adequate conditions of life, in an


environment of a quality that permits a life of dignity and well-being, and a solemn
responsibility to protect and improve the environment for present and future
generations x x x.”

Principle 21 – “states have, in accordance with the Charter of the United Nations and
the Principles of International Law, the sovereign right to exploit their own resources
pursuant to their own environmental policies, and the responsibility to ensure that
activities within their jurisdiction or control do not cause damage to the environment
of other states or of areas beyond the limits of national jurisdiction.”

B.   Brundtland Report (1987)

e.g. intergenerational and intra-generational equity – “equitable” access to


environmental resources both within the present generation as well as for future
generations
e.g. precautionary principle
e.g. maintenance of biological diversity and biological integrity

C.   World Charter for Nature (1992)  


- Respect for nature; principles of conservation of the environment; exploitation
of non-renewable resources with restraint; use of best available technologies.

D.   Rio Declaration (1992) and AGENDA 21

Principle 1 – “Human beings x x x center of concerns for sustainable development x x


x entitled to a healthy and productive life in harmony with nature.”

Principle 3 – “x x x meet x x x needs of present and future generations.”

Principle 8 – “x x x environmental protection x x x an integrated part of


developmental process x x x.”

Principle 10

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– “x x x participation of all concerned citizens x x x”


– “x x x access to information concerning the environment x x x”
– “x x x effective access to judicial and administrative proceedings x x x”

Principle 15
– “x x x the precautionary approach shall be widely applied by states according to
their capabilities. Where there are threats of serious or irreversible damage, lack of
full scientific certainty shall not be used as reason for postponing cost-effective
measures to prevent environmental degradation.”

Principle 16
– “x x x the polluter should, in principle, bear the cost of pollution, x x x”

Principle 17
– “x x x EIA x x x as a national instrument x x x”

IV.   The Core Environmental Law Rights and Duties In Relation to Philippine
Constitutional Law Framework

A.   Right to Life and Health

INTERNATIONAL CONSTITUTION

§   “ratio legis” (ECOSOC) of §   A3, S.1 (life) in relation to A2,


environmental law S.15 (health) and 16 (ecology),
§   more than absence of illness A13, S.11-13 (health)
§   W.H.O. “the attainment by all citizens
x x x of a level of health that will
permit them to lead a socially and
economically productive life”
§   Health problems related to x x x
environmental living conditions; health
status is a first indicator of
environmental degradation x x x”

B.   Freedom of Association

INTERNATIONAL CONSTITUTION

§   A 20, UDHR §   A3, S.8 (association) in relation to


§   A 21, ICCPR A2, S.18 (labor), A13, S.3 (labor),
A13, S.15-16 (people’s
organizations)

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C.   Right to Access to Information and Participation

INTERNATIONAL CONSTITUTION

§   A 19, UDHR §   A3, S.7 (matters of public concern)


§   A 19, ICCPR
§   Principle 10: Rio Declaration (access
to environmental information)
§   Principles 18 and 19 (notification in
transboundary environmental disasters)

D.   Sectoral Concerns

INTERNATIONAL CONSTITUTION
1. Indigenous Peoples §   A12, S.5 (ancestral domain) in
§   ILO 169 (Tribal Population) relation to A2, S.22 (indigenous
§   UNDRIPS, 2007 peoples), A10, S.15-21
§   Principle 22, Rio Declaration + (autonomous region), A13, S.6
Chapter 26, Agenda 21 (ancestral lands)

2. Women §   A2, S.14 (women), A13, S.14


§   Principle 20, Rio Declaration (women)
§   1993 Vienna Declaration
Part 1, par (18) – “equal
participation of women”

3. Children §   A2, S.12 (child) and 13 (youth)


§   Article 29, par 9 (e), CRC

4. Migrant Workers §   A13, S.3 (overseas workers)


§   Migrant Workers’ Convention

5. Disabled §   A13, S.11 (disabled)


§   Environmental factors often
responsible for disability

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6. Refugees, Internally Displaced and


Victims of Armed Conflict
§   Deterioration of environment as a
main cause of displacement
§   1977 Protocol 1 Additional to Four §   R.A. No. 9851 (IHL)
Geneva Conventions of 1949
Article 35, par. 3 – prohibited
means of warfare

Article 55 – attacks v.
environment

§   Principle 26 of Stockholm
Declaration, pars. 5 and 20 of
World Charter
§   Principle 24 of Rio Declaration

V.   Concluding Observations: Paradigm Shift and Normative Creativity

Jurisprudence:

§  Oposa v. Factoran – intergenerational responsibility


§  Zia v. Wapda – citizen’s suit; precautionary principle
§  Farooque v. Bangladesh – locus standi
§  Mehta v. Kamal Nath – public trust; polluter pays
§  MMDA v. Concerned Citizens – continuing mandamus (clean-up of Manila Bay)

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